Solomons and Secretary, Department of Family and Community Servic Es - [2000] AATA 278

DECISION AND REASONS FOR DECISION [2000] AATA 278

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1588

GENERAL ADMINISTRATIVE DIVISION )

Re BERTRAM SOLOMONS
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date11 April 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd) J D Campbell
..............................................

Member
CATCHWORDS
SOCIAL SECURITY – Disability Support pension – cancellation – review – intellectual impairment – psychiatric impairment – physical impairment – assessment of impairments – ability to work.

Social Security Act 1991 – s 94, schedule 1B

REASONS FOR DECISION

11 April 2000 Dr J D Campbell, Member

Mr Bertram Solomons ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 5 August 1998 which affirmed the decision of an Authorised Review Officer of Centrelink dated 4 May 1998. This latter decision had affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 11 March 1998, to cancel the Applicant's Disability Support Pension, effective from 16 March 1998.
A hearing was held before the Tribunal at Newcastle on 14 December 1999. The Applicant was self-represented and the Respondent was represented by Mr G Lozynsky, an advocate from the Administrative Law Section of Centrelink.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Respondent's Statement of Facts and Contentions dated 6 December 1999T1 – T20 (p1-71) Exhibit R1

Oral evidence was heard by the Tribunal from the Applicant, Mr B Solomons.
ISSUES
The relevant issues in this matter are:
(a)whether the Applicant has a physical, intellectual or psychiatric impairment; and
(b)whether the Applicant's impairment is 20% or more under the tables for the assessment of work-related impairment for disability support pension ("Impairment Tables"); and
(c)whether the Applicant has a continuing inability to work, in that:
(i)the Applicant's impairment is of itself sufficient to prevent the Applicant from undertaking work for at least 30 hours per week at award wages or above during the next two years; and
(ii)either:
a)the impairment is of itself sufficient to prevent the Applicant from undertaking educational, vocational or on-the-job training during the next two years; or
b)that such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.

LEGISLATION

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and, in particular:
(a)subsections 94(1), (2), (3) and (5); and
(b)Schedule 1B Impairment Tables, pre 1 April 1998.

BACKGROUND

The Applicant was granted an Invalid Pension in 1976. Payment of such a pension was continued after review in 1981 and 1986, on grounds of intellectual impairment, and relative illiteracy (T6, T7). A further medical review on 6 November 1997 resulted in the decision to cancel the Applicant's Disability Support Pension on 11 March 1998 on the grounds that the assessment of the Applicant's permanent impairments did not amount to 20% or more, using the appropriate Impairment Tables. The decision to cancel the Applicant's Disability Support Pension was affirmed by an Authorised Review Officer on 4 May 1998 and by the Social Security Appeals Tribunal on 5 August 1998.
APPLICANT'S EVIDENCE
The Applicant told the Tribunal that he was born on 28 February 1960, with his formal schooling ending at age 12 when, while in second year, having repeated a number of years, he was expelled for attacking a teacher with an axe. After this episode the Applicant stated that he was placed in a boys' home at Goulburn because of his uncontrollable behaviour. Further, he stated that after attempts to take his own life, he was admitted to a mental institution in Goulburn, where he stayed for six months. The Applicant stated that after this he lived with an Aunt in Queanbeyan and then went to live with his father in Tamworth, where he resided until some seven to eight years ago. The Applicant told the Tribunal that in 1976 he made more attempts on his life and that he was granted an Invalid Pension. Further, the Applicant stated that at the time of his father's death, he was charged with murder in Newcastle, although these changes have subsequently been dropped.
The Applicant informed the Tribunal that he has an older brother and two older sisters, and that currently he is living in a caravan on a property owned by his sister and her husband. The Applicant told the Tribunal that the caravan has no water or electricity and that, while he tries to live on his own, he is unable to sustain such an activity as he gets confused, forgets to buy food and pay bills and goes 'haywire". The Applicant stated that his longest period on his own was 12 months, but on the last occasion it was only four months. Further, the Applicant stated that he had several trips to jail, the longest being for one week. He has ridden a bike for the last five years and that a psychiatrist had considered him to be a borderline schizophrenic.
In relation to his impairments the Applicant, in response to questioning, described the following history and effects of each disability:
(a)Spine:
He has had a curvature of the spine noted for the last six years, following an incident at a friend's place, where he sustained an injury after being pushed through a door and a cupboard. X-rays three months after the event revealed a curvature of the spine.
The Applicant stated that he now has difficulty with lifting, bending or sitting, but not with walking as he had walked 17 kilometres into Bulahdelah the week prior to the hearing. The Applicant stated that he had an occasional pain each night in the upper lumbar lower thoracic area, being demonstrated as the site of the pain.
(b)Chest:
He has a chest infection approximately twice per year, which requires antibiotics. His asthma is controlled by the use of Bricanyl and Pulmicort Turbuhalers and a Ventolin Inhaler as required. He smokes a packet of tobacco every two days.
(c)Recurrent Ear Infections:
He has a problem of his ears blocking up and, following a clean up by his general practitioner, he has been referred to an ENT specialist at Taree.
(d)Mental Health:
The Applicant hears voices, which tell him to do things. He sees people who are not there and walks into things. He gets a "hell" of a headache after the voices argue. He hears the voices more when under pressure. He takes Zyprexa tablets and Melleril tablets. He gets confused and is unable to read.
The Applicant described his work history to the Tribunal as involving two periods of work, namely:
(a)where he worked for a period of three weeks for a scrap metal merchant at Tamworth; and
(b)a period of three months where he worked for APD Snack Foods at Rydalmere;

and a few odd jobs here and there.

The Applicant stated he liked gardening and plants, as there was no-one to bother him and he would like to try to work in this area.
In response to questions asked in cross-examination, the Applicant stated that since the granting of his Invalid Pension, a lot of disruption has occurred in his life; that now he has difficulty surviving on his own as he becomes confused and cannot look after his money. Further, the Applicant stated that he has invisible friends and he cannot look after children. The Applicant further responded that, on wakening in the morning, he has a "cuppa", does the washing up and tidies the house for his sister, cuts the firewood, feeds the pigs with bread, as well as feeding the horse, chooks and ducks. Finally, the Applicant stated that he did not like cleaning the house, did not watch television, and had no social life apart from an occasional visit to the club, and that he enjoyed doing jigsaw puzzles.
In answering questions about his work experience, the Applicant told the Tribunal that the first week of work goes well, during the second week he starts to slacken off and during the third week, his mind goes blank and he becomes confused. He admits to having walked off a few jobs, and that he could work for 30 hours per week for a while but he fears that he would then get upset and walk away. Further, he stated that his work preference areas would be as a farmhand or as a labourer doing gardening or landscaping at his own pace. Finally, the Applicant stated that he gets "real scared in a bus" and has panic attacks in a vehicle, and that his "mind does not seem to hold things".
MEDICAL EVIDENCE
On 13 September 1976 the Applicant was considered permanently unfit for work because of intellectual impairment and was granted an Invalid Pension (T3 p12). Review in 1981 and 1986 by Dr Spencer resulted in the Applicant's Invalid Pension status continuing (T6 and T7) on grounds of intellectual impairment and illiteracy, with a notation from Dr Spencer that the Applicant could work for possibly 20 hours per week but would need a lot of sympathetic management.
On 6 November 1997, a further medical review was undertaken by Dr Zdenkowski which nominated the Applicant's impairments as asthma and backaches, with the Applicant noting that he is unable to read or write. In report on each condition, Dr Zdenkowski stated:
Asthma/Nicotine Addiction: worse in summer, dyspnoea, cough, wheeze
Smokes 50-60 cigarettes a day.
Treated with Bricanyl, Pulmicort, Atrovent.
Condition intermittent and stable but long term.
Backaches:Assaulted February 1996, with resultant lower lumbar backache which is worse at night.
Condition constant, stable and long term.

As a consequence of his examination, Dr Zdenkowski concluded that the Applicant was fit to resume work as a labourer in full-time work, which would be assisted by some courses in literacy skills (T8).

A further review of the medical documentation was undertaken on 14 November 1997 by Dr B Lim, an employed medical practitioner with Health Services Australia, who referred the Applicant for medical examination (T9).
The Applicant was examined on 2 December 1997 by Dr Graham, who recorded the Applicant's medical history as being a five year history of asthma and a two year history of backache. Dr Graham concluded that the asthma was well controlled on medication and that the Applicant's impairment under Table 26 was zero percent. In relation to the backache, Dr Graham noted on-going back problems with no limitation of movement. As a further consequence of his review Dr Graham sought a review of previous files which revealed the Applicant as having had a behavioural problem, a psychiatric disorder and an intellectual impairment (T11 p53).
In a report dated 26 February 1998, Mr Robert Scherf, a clinical psychologist, stated:
"…
On today's testing Mr Solomons is operating in the Average Range of intellectual functioning (91) though his verbal ability is significantly poorer than his general performance ability. This may well be due to his poor educational performance and from what I can ascertain, a poor psychiatric history. Rather than an intellectual deficit Mr Solomons appears to have a range of interpersonal and personal difficulties. He does not appear to be suffering from a severe psychiatric difficulty at his stage, though I only had this short time with him. Nonetheless he communicated effectively and attempted all sections of the WAIS-R. Intellectually I would say he could work in open employment for thirty hours per week or more, though initially he would require some fairly close support because he has not worked for so many years and he is not a particularly stable individual. …" (T12 p55)

As a consequence of these further advices, Dr Graham concluded, on 5 March 1998, that there was no evidence of intellectual impairment and that the Applicant was fit for work of a light skilled, semi skilled or lesser skilled nature, with a vocational rehabilitation program essential for the Applicant to return to work. Dr Graham also specifically commented that there was no evidence of a psychiatric disorder (T10 p52).
SUBMISSIONS
The Applicant submitted that his current impairments do amount, upon proper assessment, to 20% or more, and that while he would like to work it is his contention that his impairments will continue to prevent him from working.
The Respondent contended that a proper assessment of the Applicant's impairments at the relevant time was 5% and that, with appropriate vocational training, the Applicant could be suitably employed in a range of light skilled, semi skilled or less skilled employments. In essence, it was the Respondent's position that the Applicant's Disability Support Pension had been correctly cancelled.
CONSIDERATION AND FINDINGS
In a general overview statement on this matter, the Tribunal is compelled to voice a concern that the longitudinal medical history of the Applicant, as outlined to the Tribunal, and the nature of the medical diagnostic and assessment process has not served the Applicant's optimum life outcomes. The Tribunal, in so stating, recognises that the Applicant, by virtue of his personality and impairments, may have made a significant contribution to the eventual life outcomes. Nevertheless, the Tribunal is concerned that on the evidence before it, there appears to be acceptance of a significant intellectual impairment until medical opinion seeks an appropriate clinical assessment, which indicates a relatively normal intellectual ability which has been deprived of opportunity. Further, the Tribunal notes a long history of psychiatric disorder which, at the time of the hearing, was apparent to all at the hearing and for which the Applicant would benefit from specialist psychiatric advice, assessment and treatment. The Tribunal, mindful that this matter is concerned with a review of a decision taken in March 1998, and as a consequence a consideration of the clinical symptomatology and assessments at the relevant time, expresses the view that the Applicant, as part of any further assessment process, be considered for a specialist psychiatric examination and opinion.

In considering this matter, the Tribunal notes the following relevant subsections of section 94 of the Act, current as at the date of cancellation of pension:
"Qualification for disability support pension
94(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% or more under the Impairment Tables; and
(c)because of the impairment the person has a continuing inability to work; and
…
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the person's impairment is of itself sufficient to prevent the person from doing any work within the next 2 years:
(b)either:
(i)the person's 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.
94(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
(a)that exists in Australia, even if not within the person's locally accessible labour market."

The Tribunal, in considering the medical evidence, the medical opinions and the medical history as provided by the Applicant, makes the following findings of fact:
(a)that the Applicant has a long term history of behavioural and psychiatric impairment which, while apparent at time of the hearing, was dormant at the time of the decision under review; and
(b)that the Applicant has a long term history of having been diagnosed with an intellectual impairment. However, as a consequence of appropriate clinical and psychometric testing, this diagnosis is no longer correct, with the Applicant having an average intellectual ability; and
(c)that the Applicant does suffer from asthma but this is well controlled by appropriate medication at the time in question, and continuing; and
(d)that the Applicant does suffer from low back pain, which is worse at night, and which does cause him some limitation of activity (bending, lifting) but no limitation of spinal movements; and
(e)that the Applicant appears to have a variable history with regards to migraine and headaches generally. The Tribunal notes that there is an absence of headaches in the attending doctor's report, the examination by Dr Graham, and a lack of emphasis placed on them by the Applicant at the time of hearing.
As a consequence of the Tribunal's findings of fact, the Tribunal concludes that by virtue of the existence of physical impairments (asthma, low back pain) and the existence of a psychiatric impairment (although dormant at the relevant time), the Applicant satisfies subsection 94(1)(a) of the Act.
The Tribunal, in considering each of the impairments makes the following findings:
(a)Intellectual Impairment:
Based on the report of the clinical psychologist (T12 p55), the Applicant is operating in the average range of intellectual functioning. The further opinion of Dr Graham, as a consequence of the psychologist's opinion, confirms that the Applicant does not suffer from an intellectual impairment and hence any assessment under Table 12 of the Schedule 1B Tables would be inappropriate, for the Applicant's behavioural difficulties and capacity for independent living relate to his psychiatric impairment.
(b)Psychiatric Impairment:
At the relevant time, that is within three months of the date of the decision under review, the available medical evidence is that there was no evidence of a psychiatric disorder. The Tribunal, despite any opinion it may have formed about the florid nature of the Applicant's psychiatric symptomatology at the time of the hearing, concludes that at the time of the decision, there was an absence of evidence of psychiatric disorder. The Tribunal therefore finds that on the medical evidence available to the Tribunal, that the Applicant has a nil impairment rating under Table 7 at the operative time.
(c)Asthma:
The Tribunal, noting that the medical evidence considers the asthmatic condition to be an intermittent condition which is stable and well controlled by medication, finds that the Applicant has a nil impairment under Table 26 at the operative time.
(d)Back pain:
The Tribunal, noting that the medical evidence considers the lower back pain to be constant, with no limitation on mobility, finds that the Applicant has a five percent impairment rating under Table 6.
As a consequence of the Tribunal's findings that the Applicant has a combined five percent impairment rating at the operative time, the Tribunal further concludes that the Applicant does not satisfy subsection 94(1)(b) of the Act.
In relation to the Applicant's continuing inability to work, the Tribunal makes the following observation for completeness:
(i)all the medical opinions at and around the operative time express an opinion that the Applicant is able to work for at least 30 hours per week at or above award wages and in a range of light, skilled, semi skilled or lesser skilled jobs; and
(ii)all the medical opinions express a view that the Applicant would be assisted by undertaking educational, vocational and/or on-the-job training; and
(iii)that there is an absence of any evidence which would indicate that the impairments themselves will prevent the Applicant from either undertaking such training or, despite such training being undertaken, that the impairments will prevent the Applicant from working within the next two years.

As a result of the Tribunal's observations, the Tribunal concludes that the Applicant does not have a continuing inability to work and therefore does not satisfy subsection 94(1)(c) of the Act.
As a consequence of the Tribunal's findings that the Applicant fails to satisfy subsections 94(1)(b) and (c) of the Act, the Tribunal further finds that the Applicant does not meet the qualifications required for a Disability Support Pension and that the decision to cancel the Disability Support Pension was correct at that time.
DETERMINATION
The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell
Signed:         .....................................................................................
  Associate
Date of Hearing  14 December 2000
Date of Decision  11 April 2000
Representative for the Applicant Applicant was self-represented
Advocate for the Respondent      Mr G Loznysky, Centrelink

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Solomons and Secretary, Department of Family and Community Servic Es [2000] AATA 278

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