Slade and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 335

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 335

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1346

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Katreena Slade

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member A K Britton

Date7 May 2010

PlaceSydney

Decision The decision under review is affirmed.

........................[SGD]......................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions – Disability Support Pension – continuing inability to work – applicant’s condition not sufficient to prevent her from working for more than 15 hours per week.

Social Security Act 1991 (Cth) – ss 94(1)(c), 94(5)

REASONS FOR DECISION

7 May 2010 Senior Member A K Britton           

1.      In June 2008, a decision was made to cancel Miss Katreena Slade’s Disability Support Pension (DSP) following a medical review undertaken at the request of the respondent Secretary. She had previously been receiving for just under three years. The reason given for that decision was that Miss Slade no longer satisfied one of the criteria for the pension, namely having an impairment rating of at least 20 points assessed in accordance with Schedule 1B of the Social Security Act 1991 (Cth) (the Act).

2.      On review, the Social Security Appeal Tribunal affirmed that decision. Miss Slade has now applied to the Administrative Appeals Tribunal for review of that decision.

3.      The respondent Secretary now concedes that Miss Slade has an impairment rating of at least 20 points, but argues that she fails to meet another criterion for the pension, namely a “continuing inability to work”.  Whether or not Miss Slade has a “continuing inability to work” is the key issue for determination.

Legislative framework 

4.      Section 94(1) of the Act sets out the criteria a person must satisfy to qualify for a disability support pension. These include one of the following (s 94(1)(c)) :

(i)  the person has a continuing inability to work; (or)

(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; …

5. Miss Slade is not participating in the supported wage system, and therefore s 94(1)(c)(ii) has no application.

6.      The relevant period for determining whether Miss Slade has “a continuing inability to work” is the two year period from the date the original decision to cancel the pension was made — that is, 16 June 2008 to 16 June 2010 (the subject period). She will satisfy that requirement if:

(i) the impairment is of itself, sufficient to prevent her from doing work that exists in Australia for at least 15 hours per week, within the subject period (s 94(2)(a) of the Act); and

(ii) the impairment is of itself sufficient to prevent her undertaking a training activity, as defined, during the subject period, (s 94(2)(b)(i) of the Act) or

(iii) if the impairment does not prevent her undertaking a training activity, such activity is unlikely because of the impairment to enable her to do any work independently of a program of support within the subject period (s 94(2)(b)(ii) of the Act).

7. Section 94(5) of the Act defines “work” to mean 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.

What is Miss Slade’s “impairment”?

8.      Before deciding if Miss Slade has a continuing inability to work it is necessary to first identify the relevant impairment.

9. The original decision to cancel Miss Slade’s pension was made on the basis that of her three claimed conditions — chronic neck pain, anxiety and depression and asthma — only one, chronic neck pain, attracted an impairment rating as assessed under the Impairment Tables contained in Schedule 1B to the Act and that that rating was less than the 20 points necessary to meet s 94(1)(b) of the Act.

10.     In January 2010, Centrelink undertook a further assessment of Miss Slade’s claimed conditions. The assessor agreed with the findings of the 2008 assessment as they related to Miss Slade’s neck and asthma but concluded that her depression attracted an impairment rating of 10 points. On the basis of this assessment, the Secretary has conceded that Miss Slade satisfied s 94(1)(b) — that is, she has a combined assessment rating of 20 points under the Impairment Tables.

11.     For present purposes I will presume rather than decide that as at the relevant date, i.e. the date her pension was cancelled, Miss Slade had both a physical (chronic neck pain) and psychiatric (depression) impairment and that each rated 10 points under the Impairment Tables.

Was Mr Slade’s impairment of itself sufficient to prevent her from working at least 15 hours per week throughout the subject period?

12.     To answer this question, it is first necessary to sketch in some details about Miss Slade’s work history and capacity for employment throughout the relevant period.

13.     Work history   Miss Slade who is now in her late thirties has not been in full-time employment since she was 18.  Her last paid employment was as a traffic controller. She had been in that position for a period of about 18 months. She was employed on a casual basis, her hours ranging from between four to 32 hours per week, depending on the availability of work.  Since an altercation with her supervisor in May 2008 over a safety issue, Miss Slade has been not offered any further work. 

14.     Over the past twelve months, Miss Slade has worked on a voluntary basis for a number of months in a not-for-profit retail store.  Her duties have included cleaning, stock taking and dealing with customers.

15.     Miss Slade secured rental accommodation in May 2009 after being homeless for a period. Since then she has been actively seeking employment, to date without success.  

16.     Functional capacity   In 1998, Miss Slade was seriously injured in a car accident. Since that time she has been taking anti-inflammatory and pain medication for neck and upper back pain.  She wears a neck brace when her neck is particularly painful,. She does not take, and nor has she been prescribed, medication for depression. She uses a number of self help techniques to manage the condition.  

17.     In a report prepared in July 2008, Miss Slade’s treating doctor stated that her neck condition resulted in chronic stiffness, neck and back pain and headaches. He also noted that she suffered from depression which resulted in “low mood, [being] emotional and [being] depressed”.

18.     In an assessment report dated 15 January 2010, occupational therapist, Tim Stork concluded that Miss Slade could undertake light work of at least 30 hours per week. In his view, her reported pain levels would prevent her from working full-time.

19.     In January 2010, at the request of the respondent Secretary, CSR prepared a job capacity assessment report in respect of Miss Slade. Applying the impairment Tables, CSR concluded that Miss Slade had an impairment rating of 10 points in respect of respect of each of her neck condition and depression.  The Impairment Table describe an impairment rating of ten in relation to these conditions in the following terms:

TABLE 5.1     Cervical spine

TEN                Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TABLE 6.      PSYCHIATRIC IMPAIRMENT

TEN                Moderate and regular symptoms and generally functioning with some difficulty.  (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work.  (eg. short periods of absence from work).

20.     CSR concluded that the combined effect of the two conditions meant that Miss Slade had a work capacity of between 15 to 22 hours per week.

21.     Miss Slade told the Tribunal that she believed that when her employment as a traffic controller ceased, she was capable of working between two to three days per week in that role and full-time as a supervisor. She believes that that she can perform light duties on a part time basis, and since May 2009 has being looking for employment of that type.

22.     Determination   There can be no argument that Miss Slade’s physical and psychiatric impairments have significantly reduced her functional capacity. Among other things, she has reduced movement of the cervical spine, requires medication to control chronic pain and headaches, and suffers from depression.  The weight of medical opinion is that she is totally unfit for many types of employment and unable to walk full-time in any capacity as a consequence of her impairments.

23.     The medical evidence indicates that Miss Slade was capable of performing light work of up to 15 hours per work throughout the subject period. Her employment as a traffic controller around the time her pension was cancelled, together with her recent stint in the not-for-profit retail-sector, suggests that light work, at least on a part-time basis, was within her functional capacity.  While Miss Slade’s opinion about her capacity for work is not determinative, it is to be noted that she is confident that she can perform light duties at least on a part-time basis. 

24.     Notwithstanding her not inconsiderable level of functional incapacity, I am not persuaded that Miss Slade’s impairments either alone or in combination, prevent her from undertaking “any work”.  In reaching that conclusion, I am mindful that the term “work” is broadly defined by the Act — namely, as work that exists in Australia for at least 15 hours per week on wages at or above the relevant minimum wage.

25.     Parliament has seen fit to impose a strict work test on persons seeking to qualify for a disability support pension. While I accept that Miss Slade’s capacity for employment is significantly reduced, I am not satisfied that the totality of her impairments prevent her from undertaking any “work” within the meaning of the Act throughout the subject period.  It follows that she does not have a “continuing inability to work”, and therefore does not satisfy one of the mandatory criteria for the grant of a disability pension. For this reason I must affirm the decision under review.  

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................[SGD].........................................
  Associate to Senior Member Britton

Date of Hearing:  20 April 2010
Date of Decision:  7 May 2010  
The Applicant appeared in person
Representative for the Respondent:       Ms S Memmott,
  Centrelink Advocacy Branch