Secretary, Department of Social Services v Coulter
[2014] AATA 695
•25 September 2014
DECISION AND REASONS FOR DECISION [2014] AATA 695
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/0175
GENERAL ADMINISTRATIVE DIVISION )Re: Secretary, Department of Social Services
Applicant
And: Stuart Coulter
RespondentDIRECTION
TRIBUNAL: Senior Member N A Manetta
DATE: 25 September 2014
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application by deleting the words “The decision under review is set aside” on the title page of the decision and replacing those words with “The Tribunal sets aside the SSAT’s decision” so that the sentence reads:
“The Tribunal sets aside the SSAT’s decision and substitutes a decision that the determination of the Authorised Review Officer dated 5 October 2012 be affirmed.
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N A MANETTA
(Senior Member)
[2014] AATA 695
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0175
Re
Secretary, Department of Social Services
APPLICANT
And
Stuart Coulter
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 24 September 2014 Place Adelaide The Tribunal sets aside the SSAT’s decision and substitutes a decision that the determination of the Authorised Review Officer dated 5 October 2012 be affirmed.
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Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - entitlement to Disability Support Pension - whether impairments 20 points under the Impairment Tables - continuing inability to work - program of support – decision set aside.
LEGISLATION
Social Security Act 1991 (Cth), s 94
CASES
Re Secretary, Department of Social Services and Marwood [2014] AATA 686
SECONDARY MATERIALS
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member N A Manetta
24 September 2014
This is an application by the Secretary, Department of Social Services for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 12 December 2012. The SSAT found that Mr Stuart Coulter, the respondent in these proceedings, had satisfied all the eligibility criteria prescribed for the Disability Support Pension (DSP) under the Social Security Act 1991 (the Act) and the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (the Determination). Critically, in respect of Mr Coulter’s continuing inability to work, the SSAT found that he is prevented by his impairments from working 15 hours a week or more within the next two years or undertaking a training activity.
BACKGROUND FACTS
Given the large area of agreement in this case, it is sufficient to describe Mr Coulter’s circumstances briefly. The applicant accepts that Mr Coulter suffers from two conditions: first, irritable bowel syndrome and, secondly, a lower back spinal condition. Mr Coulter’s irritable bowel syndrome, from which he has suffered since 1992, obliges him to use the toilet frequently. He takes medication which provides partial relief only. His spinal condition arose in 2004, when he injured himself at work while carrying a load of meat. His workers’ compensation claim was managed for some five years until he applied for, and received, a “pay out” as he described it in his evidence. Mr Coulter said he received the pay out in 2009.
Since that time, Mr Coulter has worked sporadically as a butcher in various supermarkets on a part-time basis only. He gave evidence of having worked at IGA in Port Noarlunga South. He left there in 2011 to work at another supermarket in Seacliff Park.
In April 2012, he lodged his DSP application. He was working again in September 2012, but only for 10 hours per week. That position finally ended in November 2012. In December 2012, he received the SSAT’s decision on his appeal.
In 2013, CRS Australia was engaged to assist Mr Coulter to find employment. CRS Australia is a firm that provides disability employment services to its clients. CRS Australia found work for Mr Coulter at Hackham Foodland. He began working there on 28 October 2013 as a Level 4 butcher on an hourly rate of $23.64. A wage subsidy was agreed to be paid to his employer for the first 26 weeks of his employment.
Mr Coulter works 15 hours per week at Hackham. He works three days a week. To assist his back condition, he does not work consecutive days. His shifts last five hours.
He has lighter duties that do not require heavy lifting. He gave evidence to the Tribunal, which I accept, that a Level 4 butcher would normally be expected to carry heavy trays of meat. I note that he was still employed at Hackham Foodland at the time of the Tribunal’s hearing in May 2014.
IMPAIRMENT POINTS
The applicant accepts that Mr Coulter has impairments totalling 20 points from his two conditions, 10 points for each condition.[1] This reflects the findings of the SSAT and it is appropriate in the circumstances that I adopt them. Mr Coulter did not suggest a higher attribution of points to either condition. Given the conclusion I have reached in this case, it would not make any difference if I were to attribute higher points to one or other condition.
[1] Secretary’s Statement of Facts and Contentions, dated 14 April 2014, [4.6].
Mr Coulter was required to have actively engaged in a program of support as he had not earned 20 points under a single Impairment Table. Here, the applicant accepted that Mr Coulter’s participation in a program conducted by Wesfarmers Group Workcover from 5 April 2009 to 31 July 2009 satisfied that requirement.[2] The program ceased, however, on Mr Coulter’s pay out. I note the SSAT referred to the pay out at paragraph [60] of its reasons as a “redemption amount”. The SSAT accepted that although Mr Coulter’s participation was relatively short, he fell within section 5(3) of the Determination because he had completed a program of less than 18 months’ duration.
[2] Secretary’s Statement of Facts and Contentions, dated 14 April 2014, [4.12].
I question whether section 5(3) applies given Mr Coulter had apparently opted to redeem his ongoing compensation entitlements, which had the effect, presumably, of preventing his further participation in what appears to have been an ongoing program.[3] The precise details of the program were not explored in evidence before me, however. I think it would be unfair to reach a conclusion contrary to that of the SSAT where the matter has not been explored in evidence because it was the subject of an express concession by the applicant. Accordingly, I think it appropriate to act on the applicant’s concession and find that Mr Coulter has actively participated in a program of support.
[3] In the recent case of Re Secretary, Department of Social Services and Marwood [2014] AATA 686, I decided the redemption of a WorkCover claim in that case excluded the possible application of section 5(3).
INABILITY TO WORK 15 HOURS PER WEEK
Mr Coulter must, however, be unable to work 15 hours per week. The evidence before me at the hearing was that Mr Coulter had worked 15 hours per week at Hackham Foodland for just over 6 months (from 28 October 2013 to 6 May 2014) and had done so successfully. Mr Coulter submitted that he considers himself to be at the risk of retrenchment, especially since the wage subsidy ended in late April 2014 and in light also of the threat of competition from a new supermarket to be opened at Port Elliot.
As to his first submission, I find that the evidence does not show that there was any threat to his position as at the date of the hearing in May, which fell more than 26 weeks after Mr Coulter began at Hackham. It would appear the subsidy had already ended at the time of the hearing. Secondly, the threat of competition from the new supermarket is a speculative concern.
In all the circumstances, it appears that Mr Coulter has found a paid position, although one that is somewhat unusual because he is spared the heavy lifting normally required of a Level 4 butcher and because he has a sympathetic employer who understands his need for frequent toilet breaks.
Mr Coulter’s employment postdates his application to the Tribunal. It is, however, relevant evidence that I must take into account in assessing Mr Coulter’s application for a DSP. I do not think I can ignore the practical demonstration of his work capacity afforded by his ongoing successful employment over some months at Hackham Foodland. He has demonstrated that he is physically capable of undertaking the duties of a Level 4 butcher for 15 hours a week provided no heavy lifting of meat is involved and provided he has a day’s break between his shifts.
I think the evidence shows on balance that Mr Coulter’s impairments do not prevent him from doing any “work” independently of a program of support. I note “work” in this context is defined to mean[4] work that is at least 15 hours per week on wages that are at or above the minimum wage and “that exists in Australia, even if not within the person’s locally accessible labour market”.
[4] See section 94(5) of the Act (definition of “work”).
I do accept Mr Coulter’s evidence that he benefits from the modified duties to which I have referred, which are not usual for a Level 4 butcher. Nevertheless, he satisfactorily undertakes work “that exists in Australia” at the present time and as at the date of the hearing had done so for some months. In this connection, I also refer to the e-mail dated 28 February 2014[5] in which Ms Fryar, a rehabilitation consultant with CRS Australia, noted that, provided his duties remained the same, Mr Coulter was unlikely to require ongoing assistance from the firm in order to maintain his current employment at Hackham Foodland “following the six-month post-placement support period”. She notes further that he is expected to maintain this employment independently.
[5] Exhibit A4.
In summary, I find Mr Coulter’s current position is one I should take into account when applying the Act and he fails, in my opinion, to meet the prescribed test of a continuing inability to work.
I would expressly commend Mr Coulter for his candour when giving evidence before the Tribunal. He openly supported Ms Fryar’s version of events; namely, that provided his duties remain the same, he should be able to maintain employment at Hackham Foodland. Finally, I would also note Mr Coulter’s concern that he was aware of people who were “rorting the system” by wrongly applying for a DSP. My task, of course, is to decide whether Mr Coulter meets the prescribed criteria. I can only reiterate that he has conducted himself honestly before the Tribunal and should be commended for that.
Given my conclusion, I do not need to address the test in section 94(2)(b) of the Act.
DECISION
I shall set aside the SSAT’s decision and substitute a decision that the determination of the Authorised Review Officer dated 5 October 2012 be affirmed (although for different reasons).
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta ........ [Sgd] ......................
Administrative Assistant
Dated 24 September 2014
Dates of hearing 5 and 7 May 2014 Advocate for the Applicant Mr A Parker Solicitors for the Applicant Program Litigation and Review Branch Department of Human Services
Respondent In person
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