STANKOVIC and CENTRELINK

[2010] AATA 746

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 746

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2245

GENERAL ADMINISTRATIVE DIVISION		)
Re		DUSANKA STANKOVIC

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date30 September 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]..................

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – Application for amendment to documents – Centrelink documents relating to disability support pension – Documents referred to achievement of threshold levels rather than absolute levels of impairment and work capacity – Utilisation of Impairment Tables – Practitioner’s opinion a matter of fact not subject to amendment - Information not incomplete, incorrect, out of date or misleading - No basis for amendment - Decision affirmed.

Social Security Act 1991 (Cth) s 94, Sch 1B

Freedom of Information Act 1982 (Cth) ss 48, 49, 50

Crawley and Centrelink [2006] AATA 571

REASONS FOR DECISION

30 September 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      On 28 May 2010, the respondent affirmed its earlier decision to reject an application by Dusanka Stankovic for amendment to certain documents held by the respondent in relation to her disability support pension claim. 

ISSUES FOR DETERMINATION

2. In 2008, Ms Stankovic was granted the disability support pension, the qualifying criteria for which are set out in s 94 of the Social Security Act 1991 (Cth). Ms Stankovic has challenged, in accordance with the terms contained in Part V of the Freedom of Information Act 1982 (Cth) (“the Act”), the accuracy of some of the documentation produced in relation to her claim. The relevant provisions of the Act read:

48       Application for amendment or annotation of personal records

Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:

(a)       that is incomplete, incorrect, out of date or misleading; and

(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

the person may apply to the agency or Minister for:

(c)       an amendment; or

(d)       an annotation;

of the record of that information kept by the agency or Minister.

49       Requirements of an application for amendment

An application for amendment must:

(a)       be in writing; and

(b)       as far as practicable, specify:

(i)the document or official document containing the record of personal information that is claimed to require amendment; and

(ii)the information that is claimed to be incomplete, incorrect, out of date or misleading; and

(iii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and

(iv)      the applicant’s reasons for so claiming; and

(v)       the amendment requested by the applicant; and

(c)specify an address in Australia to which a notice under this Part may be sent to the applicant; and

(d)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).

50       Amendment of records

(1)Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:

(a)the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and

(b)       the information is incomplete, incorrect, out of date or misleading; and

(c)the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

the agency or Minister may amend the record of information.

(2)       The agency or Minister may make the amendment:

(a)by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or

(b)       by adding to that document or official document a note:

(i)specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and

(ii)in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date.

(3)To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.

3.      It is not in dispute that Ms Stankovic has identified the documents in dispute and the information that is claimed to be incomplete, incorrect, out of date or misleading, as well as her reasons for so claiming.  Neither is it in dispute that the documents are a record of Ms Stankovic’s personal information or that the information has been used by Centrelink for the administrative purpose of processing Ms Stankovic’s disability support pension claim.  The issue for determination is whether the information is incomplete, incorrect, out of date or misleading.

CONTENTIONS

4.      The documents identified by Ms Stankovic are Centrelink’s decision, dated 3 October 2008, which recorded the grant of disability support pension claim and the Job Capacity Assessment Report, dated 30 September 2008, completed by Natalie Seneviratne from Health Services Australia Limited. 

5. The Centrelink decision included a determination that Ms Stankovic had an impairment rating of at least 20 points in accordance with the terms of the Impairment Tables in Schedule 1B of the Social Security Act 1991 (Cth) (“the Schedule”).Ms Stankovic’s concern was that the level of her incapacity was substantially more than 20 points and she contended that the actual level of her impairment should have been recorded by Centrelink in its decision.

6.      Ms Seneviratne’s Job Capacity Assessment Report included her opinion that Ms Stankovic was capable of undertaking only “0 to 7 hours” of work per week.  Ms Stankovic’s concern was that she was severely incapacitated and was incapable of undertaking any work at all.  She contended that this should have been referred to in the Job Capacity Assessment Report. 

7. Ms Seneviratne identified four disability categories in Ms Stankovic and assessed them in accordance with the relevant tables from the Schedule viz:

Table	Rating
Table 5.2 Table - Spinal function	10
Table 6 – Psychiatric conditions	10
Table 20- Miscellaneous	0
Table 22 –Gynaecological conditions	20

8.      This was totalled at 40 points.  Ms Stankovic contended that all of her conditions had not been assessed and that they warranted much higher ratings than allocated in the Job Capacity Assessment Report.  In particular, she contended that no rating had been allocated to her post traumatic stress disorder or her chronic pain. 

9. Joe Guthrie, for Centrelink, submitted that the information identified by Ms Stankovic was not incomplete, incorrect, out of date or misleading. As to the material in the decision, he submitted that the reference to the impairment rating of at least 20 points was in accordance with the threshold requirement for disability support pension in s 94 of the Social Security Act 1991 (Cth). As to the reference to “0 to 7 hours” of work per week in the Job Capacity Assessment Report, he also submitted that this was in accordance with those threshold requirements. As to the conclusions by Ms Seneviratne, in the Job Capacity Assessment Report, of the severity of Ms Stankovic’s conditions, he submitted that this was Ms Seneviratne’s opinion which reflected her professional analysis of those conditions.

CONSIDERATION

10. The qualifications to receive a disability support pension are set out in s 94 of the Social Security Act 1991 (Cth). Apart from age and residency matters, the remaining requirements thereof are:

·whether a person has a physical, intellectual or psychiatric impairment; and, if so

·whether he/she has an impairment rating of 20 points or more which is calculated under the Impairment Tables in the Schedule as required by s 94(1)(b) of the Act; and, if so

·whether he/she has a continuing inability to work as required by s 94(1)(c)(i) of the Act.

11. Ms Stankovic has been in receipt of disability support pension since 2008. Clearly, she met the s 94 requirements throughout that period. As submitted by Mr Guthrie, the first and second of those requirements are expressed in terms of thresholds which, if achieved, do not require further assessment of the full level of impairment that a person experiences. That is what happened in Ms Stankovic’s case.

12. The determination that Ms Stankovic had an impairment rating of at least 20 points in accordance with the Schedule and Ms Seneviratne’s opinion that she was capable of undertaking only “0 to 7 hours” of work per week were all that was required for her to satisfy s 94(1)(b) and s 94(1)(c), respectively, of the Social Security Act 1991 (Cth). I have no reason to doubt Ms Stankovic’s assertion that her impairment is significantly worse than the threshold of 20 points or her assertion that she is unable to work at all. However, those assertions are not inconsistent with the Centrelink documentation that she satisfies the minimum threshold requirements for the disability support pension. Accordingly, I am satisfied that the information concerning those matters in the Centrelink files is not incomplete, incorrect, out of date or misleading as provided for in s 50(1)(b) of the Act.

13. The four disability categories identified by Ms Seneviratne are noted above. Ms Stankovic contended that account was not taken of her post traumatic stress disorder or her chronic pain. However, Ms Seneviratne noted that post traumatic stress disorder was assessed along with depressive disorder under Table 6 of the Schedule. Also, chronic pain is assessed under Table 20 of the Schedule which was specifically referred to by Ms Seneviratne in her Job Capacity Assessment Report. I am satisfied that full consideration was given in that report to all of Ms Stankovic’s disabilities. I am also satisfied that the conclusions reached by Ms Seneviratne constitute her professional opinion which is appropriate to adopt in the absence of any contrary evidence[1]. Again, I am satisfied that the opinions of Ms Seneviratne in the Centrelink documents concerning Ms Stankovic’s disabilities comprise a matter which is not incomplete, incorrect, out of date or misleading as provided for in s 50(1)(b) of the Act.

[1] See Crawley and Centrelink [2006] AATA 571.

DECISION

14.     The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny Senior  Member

Signed: .................[Sgd]........................................................
             Kate Slack, Research Associate

Dates of Hearing  21 September 2010
Date of Decision  30 September 2010

The Applicant was not represented but was assisted by an interpreter in the Serbian language

The Respondent was represented by Mr J Guthrie, Departmental Advocate