Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and David Visi

[2013] AATA 291

[2013] AATA  291

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/4548
Re	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
APPLICANT
And	David Visi
RESPONDENT

DECISION

Tribunal	Senior Member K Bean
Date	13 May 2013
Place	Adelaide

The direction made by the Social Security Appeals Tribunal is set aside and in substitution for that direction this Tribunal directs that Mr Visi’s claim for disability support pension is to be assessed on the basis that he was not qualified for a disability support pension as at 31 March 2011 or within 13 weeks of that date.

.....................[Sgd]...................................................

Senior Member K Bean

CATCHWORDS

SOCIAL SECURITY - Disability support pension – Whether applicant has a "continuing inability to work" - Applicant has serious impairment but medical evidence to the effect that he can work at least 15 hours per week or undertake training - Decision under review set aside.

LEGISLATION

Social Security Act 1991, s 94

CASES

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560

Preston and Secretary, Department of Family and Community Services [1999] AATA 614

REASONS FOR DECISION

Senior Member K Bean

13 May 2013 

INTRODUCTION

1. This application concerns a claim by Mr Visi, the respondent, for disability support pension (DSP), made on 31 March 2011.  Although that claim was initially unsuccessful, on 26 September 2011, the Social Security Appeals Tribunal (SSAT) set aside Centrelink’s decision to reject the claim and substituted a decision that Mr Visi’s claim be reassessed on the basis that he was qualified to receive DSP.

2. However on 21 October 2011, the applicant (the Secretary) lodged an application with this Tribunal seeking review of the decision of the SSAT.  Accordingly it now falls to this Tribunal to determine whether Mr Visi was qualified to receive DSP at the relevant time.

   BACKGROUND

3. Mr Visi is currently 42 years old and is a qualified boiler maker and welder.  However in 1995, he suffered a serious fall in which he sustained an injury to his right elbow involving a fracture to the part of the elbow known as the “radial head”.  He has been unable to work as a boiler maker and welder since that time, and has had a total of seven surgical procedures on his elbow and wrist as a result of this injury.

4. Following the injury, Mr Visi did not work for a number of years and was in fact granted DSP from 26 May 2003.  However, in January 2004, in an effort to improve his quality of life and work capacity, Mr Visi decided to have an operation on his right elbow which was considered relatively experimental at that time, being a right radial head replacement.  That procedure was undertaken by Dr Jan Tomlinson, an orthopaedic surgeon, who warned Mr Visi before undertaking the procedure that even if it was successful, the prosthesis she was proposing to insert into Mr Visi’s elbow was unlikely to last for more than seven years.

5. Fortunately the procedure was successful and resulted in significant relief of the pain associated with Mr Visi’s condition, together with a significant increase in functional capacity.  As he felt able to work and was keen to do so, Mr Visi sought employment and in late 2004 he obtained work at the Whyalla Hotel, where he worked until some time in 2005.  Subsequent to that, in the period 21 May 2007 to 20 July 2010, he worked as a gaming/bar employee and duty manager at the Sundowner Hotel/Motel at Whyalla.  Although he found there were some limitations on what he could do in both jobs, overall he found he was able to cope with the duties he was given without taking too much medication. 

6. However in early 2010, Mr Visi began to have difficulties with the prosthesis Dr Tomlinson had inserted into his right elbow, as indeed she had warned he was likely to within seven years of the prosthesis being inserted.  As a result, in May 2010 it was necessary for the radial head replacement prosthesis to be removed.  Once the prosthesis had been taken out, Mr Visi found he could no longer cope with his duties as duty manager at the Sundowner and he left that employment in July 2010. 

7. Mr Visi was extremely disappointed at having to leave the hospitality industry, as he had enjoyed the work.  However he felt he may be able to cope with light retail duties and obtained work with a retailer in Whyalla known as Supercheap Auto, which he commenced on 2 December 2010, working between 12 and 25 hours per week.[1]  Mr Visi’s duties with Supercheap Auto included stock control, cashier and customer service work and he worked in this role until 26 March 2011.  However during his employment with Supercheap Auto Mr Visi had increasing difficulties with the heavier aspects of the duties as well as the computer based aspects.  Toward the end of that employment an incident occurred when his arm “gave way” and he dropped an item of stock.  After this incident, he went to see Dr Tomlinson and he says that she advised him at that time to cease work, which he subsequently did.  Mr Visi said in his evidence that at that time Dr Tomlinson advised him that if he did not cease work, his elbow would deteriorate more quickly and he would need a full elbow replacement sooner than if he rested his arm.  He said she advised him that he would need a full elbow replacement eventually in any case, however it was best for him to defer this for as long as possible.

   [1] Exhibit 7.

8. As alluded to above, Mr Visi accordingly lodged his claim for DSP on 31 March 2011, five days after resigning from his employment with Supercheap Auto.  The medical report he submitted in support of his claim was completed by Dr Tomlinson, who indicated in the report that Mr Visi was awaiting an arthroscopy[2] and that he was unfit for work or study from 24 March 2011 until 24 June 2011.[3]

   [2] T12/88.

   [3] T12/92.

9. It is that claim which is now the subject of consideration by this Tribunal following the Secretary’s application for review of the decision of the SSAT. 

   LEGISLATION AND ISSUES

10. In order to qualify for DSP in the context of this application, Mr Visi must demonstrate that he satisfied all of the requirements of s 94 of the Social Security Act 1991 (the Act) either as at the date of his claim for DSP, on 31 March 2011, or within 13 weeks of that date.[4]

    [4] Social Security (Administration) Act 1999, Schedule 2 at 4.

11. At the time of Mr Visi’s claim, s 94 relevantly provided as follows:

    94  Qualification for disability support pension

    (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; and

    (f)  the person is not qualified for disability support pension under section 94A.

    Note 1:   For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
    Note 2:   for Impairment Tables see section 23(1) and Schedule 1B.

    (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.

    Note:  For work see subsection (5).

    (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.

    (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.

    (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.

    …”

12. In the context of these proceedings, the Secretary does not dispute that Mr Visi satisfies ss 94(1)(a),(b), (d), (e) and (f). However the Secretary contends that Mr Visi does not satisfy s 94(1)(c) as he does not have a “continuing inability to work” within the meaning of s 94, and does not otherwise satisfy s 94(1)(c).

13. It follows that the issue for my determination is whether as at 31 March 2011 or within 13 weeks of that date, Mr Visi had a “continuing inability to work” within the meaning of s 94.

    DID MR VISI HAVE A CONTINUING INABILITY TO WORK AT THE RELEVANT TIME?

    Contentions and Evidence

14. Ms Riley, who appeared as advocate for Mr Visi, contended that the conditions affecting Mr Visi’s right arm, being his dominant arm, imposed severe restrictions on his capacity to work.  She directed the Tribunal’s attention to a number of Job Capacity Assessment Reports, some of which reflected a “Current Baseline Work Capacity” of between 8 and 14 hours per week[5].  She also relied upon a detailed work capacity assessment carried out by a physiotherapist, Mr Raymond, on 22 June 2011.[6]  She submitted that Mr Raymond’s assessment had revealed that Mr Visi would have difficulty with dexterous tasks involving his right hand and that he was essentially unable to type with that hand.  She also placed some reliance on Mr Raymond’s assessment that Mr Visi “… may be capable of working 15-22 hours weekly, however finding suitable duties may be problematic”.[7]

    [5] See for example T 13/97.

    [6] T19/116-123.

    [7] T19/122.

15. Ms Riley also relied upon the decision of Justice Drummond in Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 in which his Honour concluded that in considering whether a person’s impairment was sufficient to prevent the person from doing “any work”, pursuant to s 94(2)(a), regard should be had only to work “… which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining …”.[8]  His Honour observed (at [18]):

    “… it cannot have been the legislative intent to restrict this pension to a relative handful of the most grossly disabled people when the Parliament has identified a quite low 20 point impairment as that criterion for pension eligibility that is specifically directed to the minimum necessary degree of impairment that must exist for eligibility. … .”

    [8] At [32].

16. Ms Riley also relied upon the decision of Justice Greenwood in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 114 ALD 560, in which his Honour followed Drummond J’s decision in Pusnjak and stated (at [26]) as follows:

    “The reference in s 94(2)(a) to any work is not a reference to any work of any kind anywhere at any time. The phrase “any work” is qualified by a relationship between the impairment of itself and work that might be undertaken without the need to support Mr Harris in a program designed to assist him in preparing for, finding or maintaining work … .”

17. His Honour also elaborated further on the proper interpretation of s 94(2)(a), observing (at [33]):

    “Thus, if, on the evidence, the claimant’s impairment is the circumstance that causes employers, in the industries in which the claimant is said to be able to work, to be unwilling to provide work of at least 15 hours per week at the relevant statutory rates, a conclusion might be open that work does not exist in the statutory sense and the impairment is of itself sufficient in the circumstances of the relevant parts of the labour market put forward as the sources of “any work”, to prevent the claimant doing any work without retraining.”

    Later in his Reasons, his Honour went on to state (at [80]-[81]):

    “80 ... A consideration of whether the field of labour market employers (complying with the relevant occupational health and safety and employment laws) might be likely to engage a claimant exhibiting the particular impairment is a necessary part of the statutory test. Section 94(2)(a) requires the Secretary to ask – what work is it that this claimant is prevented from doing by reason of the impairment of itself? The first answer is the Pusnjak answer (subject now to the further consideration of doing work “independently of a program of support”: see [82] to [90] of these reasons) of the necessarily limited range of work for which the claimant has the requisite skills and experience and then by reference to whether there is training available to the applicant of the relevant kind. However, the work the claimant might do, deploying the requisite skills and experience, must be work available to be done (that is, work shown to exist) in fact, in Australia, by a person exhibiting the impairment and not simply work that might be available on a speculative basis assuming a very special employer might elect to engage an impaired person, by reason of benevolence or benign disposition, for 15 hours per week at the s 94(5) wages.

    81  Section 94(5) of the Act defines work, apart from anything else, as work that “exists” in Australia.  The Macquarie Dictionary of Australian English defines the term “exist” as “to have actual being; be; to have life or animation; live; ... to have been in a specified place or under certain conditions; be found; occur”.  The New Oxford Dictionary of English defines the term as “have objective reality or being; be found, especially in a particular place or situation; live, especially under adverse conditions”. The statutory concept of work suggests that the Secretary must be satisfied that the sources of work the applicant might be said to be able to do, must be work which has “actual being” or an “objective reality [of] being.”

18. Ms Riley contended that no work had been identified which Mr Visi could actually do, without suffering an unacceptable level of pain.  She contended that the Act did not require Mr Visi to work in pain, or undertake duties which involved significant risk of causing further damage to his arm.  In support of that proposition she relied upon the decision of Deputy President McMahon in Preston and Secretary, Department of Family and Community Services [1999] AATA 614 at [17] where the Deputy President stated as follows:

    “… An ability to work cannot mean an ability to pursue employment whilst suffering an unacceptable level of pain or impairment. …”

19. Ms Riley also relied upon Mr Visi’s evidence as to the pain and difficulty he suffered when attempting to use his right arm, including his evidence that he could only write one paragraph at a time at most, and that his arm ached all of the time, which affected his sleep.  He also gave evidence that he could not lift anything heavier than a jug of water with his right arm and that on a “bad day” the pain in his arm was “unbearable” requiring him to take strong pain medication.  Ms Riley also pointed to his evidence that he had been advised by Dr Tomlinson not to work, because of the risk of hastening the need for an elbow replacement.

20. Ms Riley further relied upon reports recording that Mr Visi suffers from pain, swelling, cramps and stiffness if he overuses his right arm[9] and that driving, using a computer, gripping, pushing and pulling all aggravate his pain.[10]  In light of the fact that Mr Visi could not type or write notes, Ms Riley contended that:

    “…Mr Visi is unaware of any vocational or rehabilitation training that he could undertake which would fit him for a class of work and therefore enable him to work for award wages.” 

    She further contended that:

    “… Mr Visi contends that his inability to write, type or use a computer and his inability to do repetitive hand actions might mean that ‘work’ does not ‘exist’ in the statutory sense. … .”[11]

    [9]  T13/94.

    [10] T19/117.

    [11] Respondent’s Statement of Facts, Issues and Contentions, at [41].

21. However, one of the difficulties confronting the case put forward on behalf of Mr Visi is that it lacks significant support from the medical evidence. 

22. The person best placed to comment on Mr Visi’s work capacity would appear to be his treating orthopaedic surgeon, Dr Tomlinson.  However Dr Tomlinson did not give evidence at the original hearing in this matter, on 9 October 2012.  As it was difficult to ascertain Dr Tomlinson’s opinion as to Mr Visi’s work capacity from her written reports, at the request of the Tribunal a further hearing took place at which Dr Tomlinson did give oral evidence. 

23. As I have indicated, part of the background to that evidence was that Dr Tomlinson had previously provided a number of written reports addressing Mr Visi’s capacity to work.

24. A statement made by Dr Tomlinson in a report dated 16 May 2011[12] was entirely supportive of Mr Visi’s case.  In that report she stated:

    “Mr David Visi has a permanent condition of his right elbow and wrist which will not improve but will deteriorate with time.  This condition prevents him from working more than 5 hours a week.”

    However in a subsequent telephone conversation with a registered nurse employed by Centrelink, Dr Tomlinson is recorded as stating that:

    “She felt that a 15-22 HPW work capacity in very light employment could be considered reasonable, however stated that she did not feel that such employment would be available.  She reported that there was no reason for her 5hpw work capacity as indicated in the specialist report.  She concurred that a functional capacity assessment would be beneficial to identify the customer’s work related capabilities and suitable work options.”[13]

    [12] T17/107.

    [13] T8/59.

25. On 24 January 2012, Dr Tomlinson also wrote a report in support of an insurance claim made by Mr Visi in which she made the following statements:

    “4.  These are affecting Mr Visi’s ability to perform his role as a retail sales assistant in that he had very limited ability to lift.  He has poor grip strength.  He has difficulty working at or above shoulder height.  He has difficulty performing repetitive activities with the right arm.

    5.  Mr Visi would be capable of performing light retail activity but would have difficulty exerting either 4.5 kg force frequently or 9 kg force occasionally.

    6.  If lighter activities could be identified Mr Visi would be capable of working.  The hours he would be capable of working would be dependent upon the position and activities required.  He would need to avoid working at or above shoulder height.  He would need to avoid repetitive lifting, reaching, pushing, pulling and gripping.”

1. Centrelink subsequently wrote to Dr Tomlinson, asking whether, having regard to the definition of “work” in s 94 of the Act, Mr Visi had an ability to work 15 hours or more per week. In a report dated 13 April 2012 responding to that letter,[14] Dr Tomlinson stated as follows:

   “…

   In answer to your specific questions.

   (1)    It is my opinion that with the enclosed definition of work, as at 25 March 2011, Mr Visi did have ability to ‘work’.

   (2)   Mr Visi would be able 15 hours a week.

   I also consider that given the enclosed definition of work, there are very few individuals currently claiming Disability Support Pension who would be eligible with respect to the above criteria.”

   [14] Exhibit 3B.

2. In her oral evidence, Dr Tomlinson essentially confirmed this latter opinion, although she also provided more detail as to the reasons for it.  She said that although the work Mr Visi had been doing at Supercheap Auto was not suitable for him, she thought he would be able to do lighter work which did not involve heavy lifting, pushing, pulling, or other repetitive activities involving his right arm.  Subject to those qualifications, she thought he could potentially work as a tour guide or car park attendant or monitoring closed circuit television screens, providing those duties did not involve significant typing.  She thought he would also be able to watch films for classification purposes, and that he could also undertake training providing this did not involve writing or typing notes. 

3. Although Dr Tomlinson expressed some doubt as to whether such duties could be found, she said if such duties were available, Mr Visi would be able to undertake them for fifteen hours per week, and would not be likely to experience an unacceptable level of pain if he did so.  Further she did not consider that duties of this kind performed for fifteen hours per week would be likely to hasten the need for him to have an elbow replacement.

4. Whilst she did not doubt Mr Visi’s honesty in recounting his understanding that she had advised him to cease work, Dr Tomlinson said she had not advised him to cease work altogether, but felt that he needed lighter work than he had been doing at Supercheap Auto.  She confirmed that she considered Mr Visi had had capacity to undertake the types of work indicated above during the relevant period commencing on 31 March 2011.

5. The medical evidence before me relevant to this issue also includes the opinion of Dr Thoo, an occupational physician, who prepared a report dated 3 February 2012 for insurance purposes.[15] In that report, Dr Thoo stated that (at 12):

   “…

   A)     I do not believe that Mr Visi is able to perform all the duties of his pre-disability occupation as a sale assistant on a full-time basis.  He may be able to perform this on a part-time basis.

   B)     He is unable to perform any heavy lifting with his right arm and should not perform sustained repetitive right arm work.  If these restrictions can be made it would be reasonable for him to try working 3-4 hours per day, 5 days per week.

   C)     I believe that the prognosis in terms of Mr Visi reaching a level of fitness which would allow him to return to his normal occupation to be very poor.

   D)    If suitable work is available I believe that he is fit to return to work doing 3-4 hours per day.  I do not believe that a graduated increase is needed.  I believe, however that 3-4 hours a day is likely to be his maximum capacity.”

   [15] Exhibit 2.

6. A Job Capacity Assessor who assessed him in April 2011 also considered that within two years Mr Visi would have capacity to work 15-22 hours per week “… With appropriate retraining and selection of employment that does not require complex tasks of manual handling or repetitive activities involving use of dominant hand/arm...”.[16]  Suggested types of employment were as a meter reader (power and water), gatekeeper or ticket seller.[17]  A further Job Capacity Assessment report submitted on 5 July 2011[18] also concluded that Mr Visi had a “Baseline Work Capacity” of 15-22 hours per week.  That report included the statement:

   “… With appropriate interventions and support, workplace aids and modifications, the client may be able to undertake 15-22 hours per week as per Jan Tomlinson orthopaedic specialist and Brad Raymond physiotherapist indications, finding suitable duties may be difficult …”. [19]

   Suggested types of employment included work as a receptionist, customer services officer, clerical officer, bank teller, car park attendant or ticket seller.[20] 

   [16] T13/97.

   [17] T13/97.

   [18] T18/111.

   [19] T18/111.

   [20] T18/112.

   Consideration

7. Having regard to the terms of s 94(2) and the applicable authorities, the first question for me is whether, during the relevant period, Mr Visi’s impairment was of itself sufficient to prevent him from doing at least 15 hours of work per week that existed anywhere in Australia, being work for which he was already fitted without the need for retraining, in a normal or open workplace and independently of a program of support.[21]  If the answer to that question is yes, then the next issues are whether, as at the relevant time, Mr Visi’s impairment of itself was sufficient to prevent him from undertaking a training activity within two years, and, if not, whether any such training activity was unlikely to allow him to work within two years independently of a program of support.[22]

   [21] See Pusnjak at [32]; Harris at [92].

   [22] s 94(2)(b).

8. In light of the evidence, I have found the question of whether Mr Visi satisfies the requirements of s 94(2) to be a difficult and finely balanced one. I accept Mr Visi’s evidence as to the difficulties he has with writing, typing and using a computer mouse, and that those difficulties place significant limitations on his ability to work. It is also significant in my view that Mr Raymond, who conducted a detailed work capacity assessment on Mr Visi, was relatively guarded in his opinion, stating that Mr Visi “may” be capable of working 15-22 hours, although finding suitable duties may be problematic.  He also found severe limitations in Mr Visi’s ability to lift, push or pull with his right hand, together with severe limitations on writing, money handling and typing with his right hand.  Mr Raymond thought Mr Visi may be able to undertake customer service work in shops dealing with lighter product lines, such as a delicatessen, though he would not be able to move large boxes or undertake any form of repetitive work.[23]  It is also relevant that in his evidence, Mr Visi reported suffering an extreme flare up of his pain following the testing undertaken by Mr Raymond.

   [23] T19/122.

9. However all of the other medical evidence, most notably the opinion of Dr Tomlinson, is to the effect that, during the relevant period, Mr Visi did have a capacity to undertake light work for 15 or more hours per week.  Dr Thoo also reached that conclusion.  Further Mr Visi agreed when it was put to him in cross-examination that he could potentially undertake work involving monitoring closed circuit security monitors, provided this only involved watching a screen.  He also agreed that he could potentially staff an information booth or act as a tour guide, watch films for classification purposes or undertake light retail work.

10. One difficulty I have considered with respect to some of these types of work is that even if the jobs themselves did not involve significant computer use, writing, or other tasks for which Mr Visi would need to use his right hand, they may involve undertaking training which itself requires the use of a computer or the ability to take notes.  However whilst this issue was not explored in any detail in the evidence, Dr Tomlinson’s evidence was to the effect that Mr Visi’s right arm impairment would not prevent him from undertaking training, if necessary with the assistance of a recording device such as a dictaphone and/or technological innovations such as voice activated software.

11. Doing the best I can on the evidence available and having regard to the opinions of Dr Tomlinson and Dr Thoo, I have accordingly concluded that whilst it may be difficult to obtain, there is likely to be some work available in Australia which Mr Visi could undertake for 15 or more hours per week.  On the limited evidence before me, that work potentially includes monitoring closed circuit television screens in a security context, viewing films for classification purposes, staffing an information booth, acting as a tour guide or very light retail work.  Further I have also concluded that, during the relevant period, Mr Visi’s impairment was not sufficient to prevent him from undertaking training of the kind necessary to allow him to undertake alternative employment consistent with his physical limitations.

12. Tying my findings more closely to the terms of the provision, I have concluded that Mr Visi’s impairment was not sufficient during the relevant period to prevent him from doing work of the kind for which he is already fitted, namely retail work lighter than the work he was doing for Supercheap Auto, for at least 15 hours per week.  In addition, and in case I am wrong in that conclusion, I do not consider his impairment of itself to have been sufficient to prevent him from undertaking a training activity within two years of when he applied for DSP.  I have also concluded that, if he had undertaken such training, Mr Visi would have had reasonable prospects of obtaining alternative work of the kind referred to above, within two years of his application for DSP.

13. I acknowledge that it is likely to be difficult for Mr Visi to obtain work in the open labour market, and some employers may be reluctant to employ him having regard to his significant right arm disability.  However, Mr Visi has been able to obtain work in the past notwithstanding his right arm condition, albeit the condition is more disabling now, and precludes him from undertaking the types of work he did whilst his elbow prosthesis remained in place.  Nevertheless, on balance, I am not persuaded that during the relevant period there was no work actually available to him within Australia which he was able to do for 15 hours per week.  Rather I am satisfied that, whilst it may not be available in Whyalla, work of the general kind Mr Visi has previously undertaken, namely light retail work, consistent with his physical limitations, was available to him in Australia during the relevant period.  In the event he undertook appropriate retraining, I am also satisfied that alternative work of the kind I have referred to would be available to Mr Visi in Australia, and would have been available to him within two years of his claim for DSP.

14. I have had some hesitation in reaching these conclusions, particularly in light of Mr Visi’s evidence about the level of pain he often suffers, and the need for him to take strong medication. However in circumstances where his treating specialist has indicated that she regards him as being able to work 15 hours per week or undertake training, notwithstanding her detailed knowledge and understanding of his condition, I am not persuaded that I should reach a different conclusion. Accordingly on the basis of the material before me I have concluded that, on balance, Mr Visi did not have a continuing inability to work within the meaning of s 94 of the Act and therefore did not qualify for DSP at the time he lodged his claim or within 13 weeks of that date.

15. Of course, it is open to Mr Visi to lodge a further claim for DSP at any time and if at some time in the future, Dr Tomlinson was to be of the opinion that Mr Visi could no longer work 15 hours per week, or undertake relevant training, clearly that opinion would be supportive of his claim.  However on the material available to me, I consider that I am obliged to set aside the decision under review and substitute a decision that Mr Visi was not qualified for DSP at the date he lodged his claim or within 13 weeks of that date.

16. I note that as a matter of law, where the SSAT has set aside a decision and remitted the matter for reconsideration in accordance with any directions or recommendations, the decision under review by this Tribunal is taken to be “the directions or recommendations of the SSAT”.[24]  As that is what occurred in this matter, my formal decision will be to set aside the direction made by the SSAT and substitute a direction that Mr Visi was not qualified for DSP as at 31 March 2011 or within 13 weeks of that date.

    [24] Social Security (Administration) Act 1999, s 179.

    DECISION

17. The direction made by the SSAT is set aside and in substitution for that direction this Tribunal directs that Mr Visi’s claim for DSP is to be assessed on the basis that he was not qualified for a DSP as at 31 March 2011 or within 13 weeks of that date.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of

.......................[Sgd].................................................

Administrative Assistant

Dated  13 May 2013

Date(s) of hearing	9 October 2012 and 12 February 2013
Advocate for the Applicant	Mr C Visser
Solicitors for the Applicant	Department of Human Services
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc