Soda and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 602
•11 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 602
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5752
GENERAL ADMINISTRATIVE DIVISION ) Re FRANE SODA Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J G Short (Member) Date11 July 2008
PlaceAdelaide
Decision Decision made on 1 November 2006 cancelling payment of Disability Support Pension (DSP) with effect from 1 September 2003 and decision dated 2 August 2007, as varied by an Authorised Review Officer on 13 September 2007, to raise and recover a debt of $15,610.94 both set aside and in substitution for those decisions the Tribunal substitutes new decisions that Mr Soda remained qualified for DSP and that Mr Soda was not overpaid DSP from 1 September 2003 until 31 October 2006.
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J G SHORT
(Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – cancellation of Disability Support Pension – overpayment debt – applicant had a continuing inability to work – decisions set aside
Social Security Act 1991 ss 94(1), 94(2), 94(5)
REASONS FOR DECISION
11 July 2008 Mr J G Short (Member) 1. Mr Soda had been in receipt of Disability Support Pension (DSP) since 1998. He received injuries in a disastrously misdirected police raid on 23 July 1997. Police had mistakenly been directed to the wrong address. As a result of this raid Mr Soda suffered from stress, depression and a loss of balance. Mr Soda already had significant medical conditions, including injuries to his stomach and left testicle (contracted in 1974), a right shoulder injury (contracted in 1986) and right shoulder, right hip and right knee injuries (contracted in 1991). In 2001 Mr Soda injured his left hip, foot, knee and ribs in a car accident and in 2006 again injured his right knee. Mr Soda also suffers from high blood pressure and high blood sugar levels. In 2006 a Centrelink officer determined that Mr Soda was no longer qualified to receive DSP and in August 2007 another decision was made to raise and recover an overpayment debt of $15,610.94 relating to the period 1 September 2003 until 31 October 2006.
2. Mr Soda’s employer provided Centrelink with a letter dated 17 November 2006 (T23/66) indicating that rather than 40 hours a week, Mr Soda had worked about 30 hours a week.
3. On 31 October 2007, the Social Security Appeals Tribunal (SSAT) found that Mr Soda had worked approximately 20 hours a week as a labourer and supervisor for a concreting business. The SSAT noted that limited evidence was available to it, however on the available evidence the SSAT determined that Mr Soda:
“… might well have had the capacity therefore to work 30 hours or more per week on lighter manual work, or on factory/process work, or on a combination of various types of work ….”
4. The SSAT concluded that Mr Soda did not have a continuing inability to work and consequently was not qualified to receive DSP. In reaching this decision the SSAT noted that Mr Soda’s employer had decided not to co-operate any further in the matter leaving a significant evidentiary deficiency. It stated:
“… Had the employer maintained records of the hours worked, or if other reliable objective evidence was available to the Tribunal about the number of hours worked, the Tribunal feels this most probably would have resolved this matter either way.”
5. The respondent accepted, and this Tribunal now finds, that during all relevant periods Mr Soda satisfied the first limb of s 94 of the Social Security Act 1991 (the Act), that is he had physical, intellectual or psychiatric impairments which were reflected through more than 20 points on the Impairment Tables (set out in a schedule to the Act). Consistently with the findings of the SSAT, the respondent argued however that Mr Soda did not retain a continuing inability to work.
6. It was common ground that throughout the period of his receipt of DSP, Mr Soda accurately and regularly advised Centrelink of his earnings. DSP payments were accordingly adjusted.
issues
7. The issue for the Tribunal to determine is whether Mr Soda did, throughout the alleged overpayment period, have a continuing inability to work and was consequently qualified to continue to receive his adjusted payments of DSP.
legislative qualification for dsp
8. The qualification criteria for DSP are set out in s 94 of the Act. That section, so far as relevant, provides:
“94 Qualification for disability support pension
(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;
…
(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 activity is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.”
9. The term “work” is defined in s 94(5) as follows:
“(5) In this section:
…
work means work:
(a)that is for at least 30 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.”
the evidence
10. Mr Soda told the Tribunal of the injuries that he suffered as a result of the misdirected police raid on 23 July 1997 at the home occupied by himself and his wife. The stress and depression which both he and his wife suffered as a result of the raid were evident to the Tribunal. Mr Soda explained that he has now built a tall fence around his property and that his wife remains within locked doors when he is absent. Both had been severely traumatised by the event.
11. Mr Soda said that he had met the then proprietor of a concreting business, Economy Concrete & Terrazzo Pty Ltd (ECT), in a shop. The shop owner had introduced Mr Soda to the proprietor. Mr Soda said that he had explained that he was unwell and unable to work on a full-time basis. The proprietor, Mr Albino Ragnelli, had told Mr Soda that as an older man with significant experience, he held valuable skills and that he could come and go to work any time he pleased.
12. Mr Soda said that the business primarily undertook concreting and paving work. He said he would usually attend work at about 6:30am at a depot on the Salisbury Highway. He said he would supervise and assist with the loading of a truck or trailer with all of the materials needed for the jobs allocated that day. He would then drive his own car to the particular worksite where he supervised less experienced employees and assisted where possible. He said that he only worked about four hours a day and would always leave the worksite before midday. Mr Soda explained that his physical disabilities, including significant testicle pain and a requirement to void his bladder frequently, meant that he could not sustain any longer hours of work.
13. Mr Soda explained that he was always paid a flat wage, initially about $420 a week gross and finally $695 a week gross. He said that he was always paid $200 a week less than the other workers because he was unable to work as long. Mr Ragnelli, Mr Soda’s former employer, explained that when he hired Mr Soda he thought that Mr Soda may work around 30 hours a week. However, he said that he had left it to Mr Soda to work his own times. He said that his sons or daughter would have seen Mr Soda attend for work at the depot, but that Mr Soda generally went straight home after leaving work. He said that he could not now recall why he had initially signed an employment declaration in which he indicated that Mr Soda had worked about 40 hours a week (T26) or why that advice was later changed to 30 hours a week. He said that his bookkeeper, Ms Bourke, had retained the records and could better inform the Tribunal.
14. Ms Bourke told the Tribunal that she had been employed by ECT prior to Mr Soda commencing work. She said that she had completed advice forms to Centrelink in relation to the hours Mr Soda had worked, but in doing so, simply wrote down the hours mentioned to her by Mr Ragnelli. Ms Bourke said that although in more recent times she had attempted to maintain some timesheets or other employment records, this attempt had proved unsuccessful. She confirmed that no records were ever kept in relation to the hours worked by Mr Soda. She also confirmed that Mr Soda was paid up to $200 a week less than full-time workers.
15. Witness Y said that he had worked with Mr Soda. He said that Mr Soda generally commenced work at about 7:00am and finished at about 11:00am. He said that Mr Soda usually worked 3-4 hours a day and that most of his work duties involved showing other people how to do the job. Witness Y said that he was sometimes annoyed when Mr Soda left work after 3-4 hours as Witness Y had to continue working. He said that on average he worked about 40 hours a week and was paid about $885 gross per week. He said that Mr Soda did not do any heavy work as he had problems with his back. He also mentioned that Mr Soda had bladder problems requiring him to frequently attend the toilet.
16. Witness X said that he had also worked with Mr Soda for about 3-4 months. He also said that Mr Soda never worked for more than about 4 hours a day. He said that he tried to protect Mr Soda from harder work.
consideration
17. The respondent relied entirely on the argument propounded by the SSAT to the effect that as Mr Soda had been able to undertake approximately 20 hours of concreting/paving work each week, it was likely that he would have been able to perform 30 hours or more of less heavy work. Consequently, throughout the relevant period he did not have a “continuing inability to work,” and was not qualified to receive DSP or any monies paid to him in that form between 1 September 2003 and 31 October 2006, in this case $15,610.94, was a debt recoverable by the Commonwealth.
18. I noted that the SSAT expressed concern at the lack of evidence relating to the hours Mr Soda had worked and its indication that if the employer had maintained records or if other reliable evidence was available, then that evidence would have led to the resolution of the matter either way.
19. I have had the benefit of hearing evidence from Mr Soda’s former employer, the business bookkeeper and two people who worked with Mr Soda. It is clear that the employer did not keep records of the hours Mr Soda worked. It is also clear on the evidence before me that Mr Soda was paid significantly less than other employees, probably about $200 a week less. Having heard evidence from Mr Soda’s co-workers, I am satisfied that he worked approximately 20 hours a week in an environment where he primarily performed supervising duties and was protected to some extent by his co-workers from a requirement to perform heavier work.
20. I note the content of a Medical Assessment Report dated 5 May 2003 (T46/200-215) completed by a Health Services Australia medical officer indicating that Mr Soda suffered from a depressive disorder with anxiety which adversely affected his ability to persist with work tasks, concentrate for long periods and appropriately interact with others. He also suffered from deafness/tinnitus in his right ear with recurrent vertigo, which impaired his ability to work at heights, and from left knee osteoarthritis, numbness and numbness of the left foot which restricts his ability to engage in sustained work. The report also indicates that Mr Soda suffers from essential hypertension. It concludes that “Medical conditions preclude him from re-entering the F/T work force in the foreseeable future”.
21. It is in the light of the evidence, including evidence which was not available to the SSAT, that I have concluded that Mr Soda satisfied all the qualification criteria for DSP prescribed in s 94 of the Act, including the requirement that he has a “continuing inability to work”.
decision
22. Having had the benefit of hearing all of the evidence, including evidence which was not made available to the SSAT, I find that Mr Soda was qualified to receive DSP during the relevant period. Consequently, I set aside the decisions under review and substitute new decisions that Mr Soda was qualified to receive DSP and that he was not overpaid DSP during the period 1 September 2003 until 31 October 2006.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: .....................................................................................
AssociateDate of Hearing 16 June 2008
Date of Decision 11 July 2008Advocate for the Applicant Ms N Pearks
Office of Jennifer Rankine MP
Advocate for the Respondent Ms J Kitto
Centrelink Legal Services Branch
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