Simpson and Secretary, Department of Family and Community Service S

[2003] AATA 1127

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1127

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1088

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALICE SIMPSON

Applicant

And

SECRETARY, DEPARTMENT

OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date11 November 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

...................(Sgd)....................

O Rinaudo
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – eligibility – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work

Social Security Act 1991 s 94

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

REASONS FOR DECISION

11 November 2003	Mr O Rinaudo, Member
Decision Under Review

1. Ms Simpson seeks review of a decision made by Centrelink on 26 February 2002 to cancel disability support pension. On 17 July 2002 an Authorised Review Officer affirmed this decision. The Authorised Review Officer determined that Ms Simpson rated 15 impairment points for her permanent medical conditions of osteoarthritis, hypertension and irritable bowel syndrome. As Ms Simpson did not rate 20 or more impairment points, as required by section 94 of the Social Security Act 1991, she was no longer qualified for payment of disability support pension, which she had been receiving since 1996.  The Authorised Review Officer also determined that Ms Simpson did not have a continuing inability to work.

2.      On 20 November 2002 the Social Security Appeals Tribunal affirmed the decision under review.  However, that Tribunal determined that Ms Simpson had a total rating of 10 impairment points under the Tables rather than 15 impairment points as determined by the Authorised Review Officer.

Issues

3.      The issues to be determined by the Tribunal are:

·     whether Ms Simpson has a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables, and, if so;

·     whether, as a result of this impairment, Ms Simpson has a continuing inability to work.

Legislation

4.      The legislation relevant to this application is contained in the Social Security Act 1991 (“the Act”). In particular, sections 94(1), (2) and (5) are most relevant. These sections state as follows:

“(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.

(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 within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

…

(5)      In this section:

‘educational or vocational training’ does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

‘on-the-job training’ does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

‘work’ means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person's locally accessible labour market.”

Evidence

5.      Ms Simpson attended the hearing and gave evidence on her own behalf.  In addition to her evidence the following exhibits were tendered at the hearing:

·     Exhibit 1              “T” Documents

·Exhibit 2              Letter from Welfare Rights Centre Inc dated 29 January 2003 attaching report from Lesley Stephenson dated 20 December 2002

·Exhibit 3             Report of Lesley Stephenson, Occupational Therapist dated 20 May 2003

6.      Ms Simpson told the Tribunal that she first received the disability support pension in 1996 and that she had “gotten heaps worse since then”.  She said that she went to Job Network seeking work and that they sent her home. 

7.      Ms Simpson said that she has pain in her hands.  This pain has been there for some 16 years.  Her primary work was as a kitchen hand.  She said that she kept dropping things – pots of tea.  This was dangerous for patients.  She was asked to leave this job. 

8.      Ms Simpson said that she is taking Feldene and Panadeine Forte for the aching hands.  In cross-examination Ms Simpson was referred to T10/74 in Exhibit 1 where it said that she had “aching hands on and off.  Still does tapestry”. Ms Simpson said that she does not do tapestry now.  She said that this was the same in November 2002 and that she could not pull the needle through the tapestry.

9.      Ms Simpson stated that she could do a jigsaw puzzle but she could only do this for about half an hour per day. 

10.     She said that she has aching feet although she has little limitation on walking.  She said that her feet ache when she has been on them all day.  When asked about her irritable bowel syndrome referred to at T10/75, Ms Simpson replied that she was able to control this “pretty well with diet”..  She said that she had had two episodes in the last twelve months.  Ms Simpson said that medication helped with her irritable bowel syndrome and that she was taking Colese which cost $14 per fortnight.

11.     Ms Simpson said that she can make the bed but only slowly.  She said she cannot wash, cook, sweep or do the dishes.  She said that a friend helps her with the shopping.  This has been the same since about 1992.  She said that she used to go to Bingo once a month but she cannot do this now.

12.     Ms Simpson said that she could work as a shop assistant if she did not have to stand on her feet for too long. 

13.     In August 1996, Dr Douglas rated Ms Simpson as having anxiety depression which he rated at 15 points under Impairment Table 7, osteoarthritis of the hands which he rated as 10 points under Table 5 and migraine which he gave no impairment rating to under Table 26.  This meant a total impairment of 24 points as a result of which Ms Simpson was given the disability support pension.

Discussion and Decision

14.     The Tribunal must consider Ms Simpson’s eligibility for disability support pension as at the date of cancellation on 26 February 2002: see Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 where it was held that:

“Where the Tribunal was reviewing a refusal to grant a pension or benefit which had been applied for, it would be proper for the Tribunal to consider the entitlement to that pension or benefit up to the time of the Tribunal’s decision. But ss 158 and 159 of the Social Security Act, which provide that the grant or payment of a pension, benefit or allowance should not be made except upon the making in writing of a claim for that pension, benefit or allowance, made it clear that, when reviewing a decision to cancel a pension or benefit, the Tribunal should confine itself to considering eligibility as at the date of cancellation.”

15.     So, does Ms Simpson have medical conditions which attract a rating of 20 impairment points under the Impairment Tables as at 26 February 2002 and does she have a continuing inability to work? 

16.     On 15 February 2002, Dr Hadwen of Health Services Australia conducted a medical examination of Ms Simpson and completed a medical assessment report (T10/69-83).  Dr Hadwen noted that:

“This 56 year old lady has mild osteoarthritis of the hands and feet.  She has good hand function and no visible deformity.  She has good walking tolerance and was observed negotiating stairs with ease.  She has irritable bowel syndrome which she states is well controlled on diet alone.  She also suffers from mild hypertension and hyperlipedaemia, both of which are well controlled on medication.

I agree with her treating doctor that this lady is fit for full time work in the light & moderately heavy manual handling categories."

17.     Dr Hadwen assessed Ms Simpson’s osteoarthritis of the hands and feet at nil impairment rating under Tables 3/4 and nil impairment rating for her irritable bowel syndrome under Table 11.2.  On 14 May 2002, Dr Jordan of Health Services Australia examined Ms Simpson and completed a medical assessment report (T17/98-112).  Dr Jordan assessed Ms Simpson as having 15 impairment points, being 10 points under Table 3 for her right hand arthritis and 5 points under Table 3 for her left hand arthritis.  Dr Jordan also assessed nil impairment rating for Ms Simpson’s ankles and feet and nil impairment rating for her irritable bowel syndrome.  In his summary, which is contained at T17/113 in Exhibit 1, Dr Jordan explains this assessment.

18.     Ms Lesley Stephenson, Occupational Therapist, at Exhibit 3 notes that Ms Simpson had 24 points impairment rating, being upper limb function under Table 3 at 15 points and lower limb function under Table 4 at 10 points, as at 11 December 2002.  As there is little difference between Ms Stephenson’s assessment of upper limb function and Dr Jordan’s assessment, it is not necessary to go further into that issue.  However, Dr Jordan assessed Ms Simpson as nil rating for lower limb function whereas Ms Stephenson assessed her at 10 points.

19.     It is not necessary for present purposes to debate which of the assessment is correct.  Ms Stephenson’s assessment was considered to be correct as at 11 December 2002. 

20.     As previously stated, the date upon which the Tribunal is required to determine whether Ms Simpson had 20 impairment points in accordance with the Impairment Tables is as at 26 February 2002. 

21.     For present purposes the Tribunal adopts the assessment of Dr Jordan and determines that Ms Simpson is suffering from disabilities which equate to 15 impairment points under the appropriate Impairment Tables as at 26 February 2002. 

22.     The Tribunal had regard to the discussion of the Social Security Appeals Tribunal with respect to the applicability of Table 20 in determining Ms Simpson’s impairment points. 

23.     With respect to the Social Security Appeals Tribunal, the Tribunal considers that it is more appropriate to determine Ms Simpson’s impairment under Tables 3 and 4 of the Tables as determined by Dr Jordan.  Dr Jordan refers to “moderate reduction in the function of both hands” giving an assessment under Table 3 of 10 points for the dominant upper limb and 5 points for the non-dominant upper limb making a total of 15 points.

24.     As the Tribunal is satisfied that the applicant does not have an impairment rating of 20 points, it is strictly unnecessary to consider the question of whether she has a continuing inability to work.  However, the Tribunal notes that the medical evidence confirms Ms Simpson does not have a continuing inability to work.  Ms Simpson is rated by most doctors as capable of undertaking light work within the next two years or that she could be retained to do such work – refer Dr Landsberg’s report dated 2 September 2002 which notes that Ms Simpson can return to light duties now; Dr Jordan, who confirms that Ms Simpson is capable of returning to more than 20 hours work per week now and Dr Hadwen who confirms that Ms Simpson is capable of returning to work. 

25. In this regard it should be noted that a continuing inability to work means that the person cannot work within the next two years or that they cannot be retrained or retraining is unlikely to enable them to work within two years (subsection 94(2) of the Act). “Work” means work of at least 30 hours a week at award wages or above and that exists anywhere in Australia (subsection 94(5) of the Act).

Decision

26.     Accordingly, the Tribunal affirms the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:         Denise Burton
  Administrative Assistant

Date of Hearing  28 May 2003
Date of Decision  11 November 2003

The Applicant appeared in person
For the Respondent                  Mr S Letch, Departmental Advocate