SHABAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 767

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 767

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1862

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LINA SHABAN

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date7 October 2010

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements - Disability support pension – Relevant time-frame for assessment – No conditions diagnosed, investigated, treated and stabilised during the relevant period - Applicant not qualified for disability support pension - Decision under review affirmed.

SOCIAL SECURITY – Benefits and entitlements – Youth disability supplement – Not payable to applicant while she had no partial capacity for work – Decision under review affirmed.

Social Security Act 1991 (Cth) - ss 16B, 94, 1067, 1067G, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

7 October 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      From 3 November 2008, Lina Shaban was in receipt of youth allowance which is payable under the terms of the Social Security Act 1991 (Cth) (“the Act”). An increase in that allowance, called the youth disability supplement (“YDS”), is payable under the Act to a person who has a partial capacity to work[1].  Centrelink determined Ms Shaban to be qualified to receive the YDS from 24 August 2009.  She disputed the start date of that payment and an authorised review officer advanced the start date to 6 July 2009.  The matter was reviewed by the Social Security Appeals Tribunal (“SSAT”) on 16 April 2010 and the start date was determined to be 24 April 2009. 

[1] See module D of s 1067G -D1 of the Act.

2. On 6 February 2009, Ms Shaban lodged a claim for disability support pension which is also payable under the Act. This was rejected by a Centrelink delegate on 17 February 2009 and again on 30 July 2009. On 9 November 2009, the authorised review officer affirmed the decision as did the SSAT on 16 April 2010.

LEGISLATION, ISSUES AND SUBMISSIONS

3.      The qualifications to receive YDS include the requirements that a recipient has not turned 21 years of age and has a partial capacity to work[2].  It is not disputed that Ms Shaban turned 21 years of age on 10 October 2009.  The term, partial capacity to work, is defined in s 16B(1) of the Act. It reads:

16B     Partial capacity to work

(1)       A person has a partial capacity to work if:

(a)       the person has a physical, intellectual or psychiatric impairment; and

(b)       the Secretary is satisfied that:

(i)the impairment of itself prevents the person from doing 30 hours per week of work independently of a program of support within the next 2 years; and

(ii)no training activity is likely (because of the impairment) to enable the person to do 30 hours per week of work independently of a program of support within the next 2 years.

[2] Ibid.

4.      The decision concerning Ms Shaban’s YDS was made on the basis that her partial capacity to work arose only from 24 April 2009.  The issue for the Tribunal is whether Ms Shaban had a partial capacity to work from an earlier date.

5. The qualifying requirements for a disability support pension are set out in s 94 of the Act. It is common ground that Ms Shaban meets the age and residency requirements of that provision. The remaining requirements thereof are:

·whether she has a physical, intellectual or psychiatric impairment; and, if so

·whether she has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by s 94(1)(b) thereof; and, if so

·whether she has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

6. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim[3].  In Ms Shaban’s case, this is from 6 February 2009 until 6 May 2009 (“the relevant period”).  The issue for the Tribunal is whether Ms Shaban meets the requirements for the disability support pension during that period. 

[3] See Sch 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth)

7.      Ms Shaban submitted that she had recently obtained medical reports which showed that she was not capable of working for 15 to 22 hours per week.  For that reason, she submitted that she was qualified for the disability support pension.  She also submitted that she had received the YDS previously and submitted that she should have received this from a date earlier than 24 April 2009.  For the respondent, Jasmine Forsyth submitted that no impairment rating could be allocated to Ms Shaban for any of her conditions during the relevant period because none of them was fully diagnosed, treated and stabilised at that time.  She also submitted that the evidence demonstrated that Ms Shaban had a capacity for work for 15 to 22 hours at the time she was seen by Ms Francis, a Job Capacity Assessor.  Accordingly, she submitted that Ms Shaban was not qualified for the disability support pension at the relevant time.  She also submitted that, on the basis of Dr Rebecca Anderson’s report and Ms Shaban’s own evidence, she did not have any capacity for work prior to 24 April 2009.  Ms Shaban submitted that the more recent medical reports referred to by Ms Shaban may well enable her to qualify for the disability support pension if a new claim was made by her for that payment.

EVIDENCE 

8.      In her claim for disability support pension, Ms Shaban listed her disabilities as “stress issues from school”.  Attached to the claim was a medical report from Dr Anderson, dated 5 February 2009.  Dr Anderson identified Ms Shaban as suffering only from left knee instability for which she underwent orthopaedic surgery by Dr Sarah Coll in January 2009, which prevented her from weight bearing and from which she was expected to recover after three months of rehabilitation.  Dr Anderson declared that Ms Shaban was unfit for her usual work or study until 23 April 2009.  In her evidence, Ms Shaban agreed that she was completely incapable of work at that time.

9.      In a report, dated 14 July 2009, Dr Coll wrote that Ms Shaban had a “united osteotomy, ongoing problems with quadriceps weakness and patella instability”.  She recommended that Ms Shaban be discharged from physiotherapy but that she needed quadriceps tone.  She advised that Ms Shaban may benefit from a patella stabilisation and also recommended that she have an MRI scan on her left ankle.

10.     Ms Shaban was seen by job capacity assessor Kerry Francis, registered psychologist, on 12 August 2009.  Ms Francis completed a job capacity assessment report as well as a psychological report, dated 19 August 2009.  Ms Francis also gave evidence at the hearing.  Ms Francis considered that Ms Shaban met the criteria for both depressive disorder and anxiety disorder and recommended that she have psychological counselling.  In her job capacity assessment report, Ms Francis identified the following conditions: anxiety, depression, lower limb deficiencies, musculo-skeletal disorder, skin disorder and respiratory disorder.  Ms Francis wrote that the psychological conditions were permanent, that the other conditions were temporary and that none of the conditions was fully diagnosed, treated and stabilised.  Ms Francis considered that, without intervention, Ms Shaban had a capacity to work for 15 to 22 hours per week in moderately less skilled areas such as a kitchen hand, room attendant or a retail sales assistant.  She considered that, with intervention, Ms Shaban had a future capacity to work for 23 to 29 hours per week in those areas. 

CONSIDERATION

11. The Introduction to Schedule 1B of the Act provides that, for an impairment rating to be allocated to a condition, it must have been diagnosed, treated and stabilised and considered to be permanent, in that there must be evidence that it will persist for more than two years. The only condition identified as being suffered by Ms Shaban during the relevant period is that relating to her knee. The other conditions identified by Ms Francis in August 2009 were not diagnosed in the relevant period. Further, Dr Anderson described none of the conditions as being fully treated or stabilised at the time of her report. In the absence of any other medical evidence, I am satisfied that there are no conditions for which an impairment rating may be allocated during the relevant period.

12. As no impairment rating can be allocated to Ms Shaban, she does not satisfy the required threshold of 20 points under s 94 of the Act and therefore does not qualify for the disability support pension during the relevant period.

13.     I have noted that, on the basis of Ms Francis’ evidence, Ms Shaban had a capacity for work at the time when she saw her in August 2009.  However, the evidence of Dr Anderson is that Ms Shaban was unfit for work until 23 April 2009.  Ms Shaban agreed with that conclusion.  That being so, I am satisfied that Ms Shaban did not have a partial capacity for work prior to 24 April 2009 and that the YDS was not payable to her from any earlier date.  

DECISION

14.     The Tribunal affirms the decisions under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:  ....................[Sgd]........................................................
               Kate Slack, Research Associate

Date/s of Hearing  4 October 2010
Date of Decision  7 October 2010
Applicant appeared by telephone and was self-represented
Solicitor for the Respondent     Jasmine Forsyth, departmental advocate