SHARON MYLES and SECRETARY, DEPARTMENT OF HOUSING, FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 126
•22 February 2012
[2012] AATA 126
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2007
Re
SHARON MYLES
APPLICANT
And
SECRETARY, DEPARTMENT OF HOUSING, FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms K Hogan, Member
Dr J Chaney, MemberDate 22 February 2012 Date of written reasons 22 February 2012 Place Perth The Tribunal affirms the decision under review
..(sgd) K Hogan......................
Ms K Hogan, Member
Catchwords
SOCIAL SECURITY – Disability Support Pension – Commencement Date
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
Ms K Hogan, Member
Dr J Chaney, Member22 February 2012
HISTORY
1. On 25 November 2010 the Applicant contacted Centrelink in relation to claiming Disability Support Pension and lodged a claim for Disability Support Pension on 7 December 2010.
2. An officer of Centrelink decided that Disability Support Pension was to be granted to the Applicant from 25 November 2010 being the date she contacted Centrelink to lodge a claim for Disability Support Pension.
3. The Applicant requested a review of that decision and sought to be paid Disability Support Pension from an earlier date.
4. The decision was reviewed and affirmed by a Centrelink Authorised Review Officer (“ARO”) on 11 March 2011.
5. On 14 March 2011 the Applicant lodged an application for review of the decision with the Social Security Appeals Tribunal.
6. On 4 April 2011 the ARO reviewed the previous decision and decided that the Applicant was entitled to Disability Support Pension from 23 August 2007.
7. The Social Security Appeals Tribunal affirmed the Decision under review on 12 May 2011.
8. The Applicant appealed to this Tribunal.
ISSUE
9. The issue to be considered by the Tribunal is the date from which the Applicant is entitled to be paid a Disability Support Pension.
LEGISLATIVE FRAMEWORK AND POLICY
10. The legislation relevant to this decision is contained in the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).
11. Provisions relating to whether a person is qualified for Disability Support Pension and whether Disability Support Pension is payable to a person are contained in Part 2.3 of the Act.
12. The qualification criteria for Disability Support Pension are contained in s 94 of the Social Security Act 1991 (Cth) (“the Act”).
EVIDENCE
13. The Tribunal was provided with a number of documents including:
(a)the section 37 documents; and
(b)written submissions from the parties.
14. The Tribunal heard oral submissions on behalf of the parties.
ELIGIBILITY CRITERIA
15. A person is qualified for a Disability Support Pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)). All of these requirements must be satisfied before a person is entitled to a Disability Support Pension.
16. In respect of a continuing inability to work, sub-sections 94(2) and 94(5) of the Act are relevant.
17. From 1 July 2006 the sub-sections provided that 'work' meant 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.
18. Prior to 1 July 2006, sub-section 95(5) of the Act provided that work was for at least 30 hours per week.
IMPAIRMENT TABLES
19. The Impairment Tables which the Tribunal is required to apply are in Schedule 1B of the Act. It is also necessary for the Tribunal to have regard to the instructions in the Introduction to the Impairment Tables.
20. Paragraph 2 of the Introduction to the Impairment Tables provides that the Tables “are designed to assess impairment in relation to work”.
21. Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history or examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.
22. Paragraph 5 of the Introduction to the Impairment Tables states that a condition “must be considered to be permanent”. The paragraph states that “once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years”. The paragraph concludes with a statement that a condition will be considered to be fully stabilised “if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years”.
23. Paragraph 6 of the Introduction to the Impairment Tables states that “in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred” and “whether any treatment is still continuing or is planned in the near future”.
24. There was no issue that the appropriate table for the applicant to be assessed under is Table 6 (Psychiatric Impairment).
CONTENTIONS
Respondent's Contentions
25. The Respondent did not seek to disturb the SSAT decision as it accepted the Applicant's functional inability to work had manifested itself in late 2007.
26. The Respondent argued that whilst the Applicant had suffered a serious medical condition, possibly from birth, the criteria for Disability Support Pension is very strict, and requires certain criteria to be met before a pension can be granted. The person must have a medical condition or conditions which have been fully diagnosed, treated and stabilised.
27. There are limited backdating provisions within the Social Security Act - if a person has contacted Centrelink about making a claim, and then puts in a claim within 14 days, it can be backdated to the date of claim.
28. Relevant to this particular matter is section 15 of the Administration Act, that if a person has made a claim for a payment and was granted that payment, but then later the Secretary is satisfied that they also satisfy the criteria of another payment – in this case it would be the Disability Support Pension – then the person can be transferred from one payment to the other.
29. The Respondent agreed with the decision of the ARO, subsequently affirmed by the SSAT, that there was medical evidence that showed the Applicant qualified for Disability Support Pension in August 2007, and therefore is was appropriate to backdate her Disability Support Pension claim of November 2010 to August 2007.
30. The Respondent contended that the Applicant's condition had not been fully diagnosed prior to 10 July 2006 and therefore the Applicant did not satisfy section 94(b) of the Act.
31. The Respondent contended that the Applicant did not display a continuing inability to work prior to August 2007 and could not be found to have satisfied section 94 (c) of the Act.
32. The Respondent contended that there is no date prior to August 2007 on which the Applicant satisfied the criteria listed in paragraph 26 above.
Applicant's Contentions
33. The Applicant sought to be paid the Disability Support Pension from 17 April 1993 when she claimed a Health Care Card.
34. The Applicant contended that she was not "capable" of 15 hours work or more from April 1993 because she had a long-standing history of mental incapacitation/sickness/injuries and illnesses of 20 % impairment.
35. The Applicant contended that the work she performed and the job capacity assessments did not reflect her "capacity" to work and that the failure of Centrelink to place her on Disability Support Pension resulted in her having to work hours for which she was not fit and produced a significant financial loss through cashing in her superannuation.
CONSIDERATION
36. In reviewing her earlier claims to ascertain whether they can be regarded as a claim for Disability Support Pension, the Tribunal is required to consider the legislation that was current at the particular time such claims were lodged.
37. The Applicant claimed the Health Care Card on 17 April 1993, but that claim was rejected on 12 May 1993. The Health Care Card takes into account a person’s income and not their medical circumstances. The Tribunal was not able to find that the Applicant's’ claim for a Health Care Card on 17 April 1993 could be regarded as a claim for Disability Support Pension.
38. In considering if the Applicant qualified for Disability Support Pension the criteria that a person must have a medical condition or conditions which have been fully diagnosed, treated and stabilised must be met and the Tribunal is required to consider whether the Applicant has 20 impairment points or more under the Impairment Tables (or 20% for the earlier claims) and if she had a continuing inability to work.
39. In respect of a continuing inability to work, sub-sections 94(2) and 94(5) of the Act are relevant.
40. From 1 July 2006 the sub-sections provided that 'work' meant work:
(c)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(d)that exists in Australia, even if not within the person’s locally accessible labour market.
41. Prior to 1 July 2006, sub-section 95(5) of the Act provided that work was for at least 30 hours per week.
42. The Tribunal examined the Centrelink records of the Applicant and confirmed in the course of the hearing that the medical evidence for the period prior to 23 August 2007 was as follows:
(a)medical report dated 5 November 2003 in relation to pregnancy confinement date;
(b)4 May 1999, spinal disorder (temporary condition) unfit for work 4 May 1999 to 25 May 1999;
(c)8 December 2000, renal tract disorder (temporary condition) unfit for work 24 November 2000 to 15 December 2000;
(d)11 March 2001, psychological/psychiatric disorder (temporary condition- unfit for work 11 March 2001 to 19 April 2001);
(e)23 August 2007, Post Traumatic Stress;
(f)4 September 2007, Post Traumatic Stress.
43. In the post grant job search allowance interview of 22 September 1994 it was recorded that the Applicant was not unfit for work, was fully available for work and had no problems regarding work.
44. In the Application for Payment Forms included in the Centrelink files, the Applicant ticked “No” to the question “were you unfit for work” for various periods between 9 July 1993 and 28 January 1998.
45. In a jobseeker questionnaire completed 3 May 1999, the Applicant stated she had obtained a qualification in hospitality in July 1996 and that she could still use her qualification and was working on an irregular casual basis.
46. The medical report of Dr Veltman dated 17 July 2006 contains the first diagnosis of the Applicant’s condition. Whilst there is reference in that report to the Applicant having sought help in early 2001, there was no contemporaneous medical evidence provided to Centrelink.
47. The Tribunal considered Centrelink’s records containing details of the Applicant’s income from employment. It appears that the Applicant’s income was generally of short duration and that she worked on a casual basis and not always on consecutive fortnights. However, for the Tribunal to find that the Applicant is entitled to Disability Support Pension from a date earlier than 23 August 2007, the Tribunal must be satisfied that the Applicant met the qualification criteria for Disability Support Pension in section 94 of the Act.
48. Whilst in regard to the claim for Newstart Allowance of 3 November 2006, the report of Dr Veltman on 17 July 2006 would indicate that there is sufficient evidence to suggest that at that time the Applicant’s condition would rate 20 points on Impairment Table 6 at that time, the Applicant is also required to have a continuing inability to work (sub-section 94(1)(c) of the Act).
49. In the two year period from 3 November 2006, the Applicant worked in excess of 30 hours in the fortnights ending 14 December 2006, 28 December 2006 and 26 October 2008 and therefore it is not open to the Tribunal to find that she had a continuing inability to work under sub-section 94(1)(c) of the Act and determined that she did not qualify for a Disability Support Pension in respect of the claim lodged on 3 November 2006.
50. In relation to the claim lodged on 26 June 2006, the Applicant worked in excess of 30 hours per fortnight in the period 13 July 2006 to 1 September 200 - fortnightly hours of 30, 41, 91, 59, 68, 71, 38, 39, 48 and 61. The Tribunal is therefore not able to find that the Applicant had a continuing inability to work pursuant to sub-section 94(1)(c) of the Act and determines that she does not qualify for a Disability Support Pension in respect of the claim lodged on 26 June 2006.
51. The Tribunal finds that there is insufficient medical evidence to find that the Applicant had an impairment rating of 20 points or more (or 20% or more) in respect of the claims that were lodged on 16 July 1993, 5 November 1993, 27 January 1994, 14 May 1994, 29 May 1995, 23 August 1996, 26 July 2000, 16 March 2001 and 23 June 2002.
52. In addition, the Tribunal notes that on the forms on the Applicant’s Centrelink file lodged between July 1993 and January 1998, the Applicant ticked “No” to the question in relation to “were you unfit for work”.
53. Whilst the Applicant indicated that she had not completed one of the forms that was drawn to her attention in this regard, there was consistent evidence before the Tribunal that forms were completed professing an ability to work and there was evidence of her actual ability to work on an ongoing basis.
DECISION
54. The Tribunal affirms the Decision under review.
I certify that the preceding 54 paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member .
...(sgd) T Freeman..................
Associate
Dated 22 February 2012
Date of hearing 24 October 2011 Applicant In person Advocate for the Respondent Ms M Conlon
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