Stewart and Secretary, Department of Family and Community Service S
[2003] AATA 1077
•29 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1077
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/175
GENERAL ADMINISTRATIVE DIVISION )
Re CATHERINE GRACE STEWART Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Mr RG Kenny, Member Date29 October 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more - relevant time-frame - whether applicant has continuing inability to work
Social Security Act 1991 - section 94, Schedule 1B
Social Security (Administration) Act 1999 - clause 4, Part 2, Schedule 2REASONS FOR DECISION
29 October 2003 Mr RG Kenny, Member Background
1. On 8 August 2002, Catherine Stewart (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon her of health problems described by her treating doctor, Dr G Smith, as anxiety disorder and bilateral (left) sensori neural deafness. On 15 October 2002, a delegate of Centrelink rejected the applicant’s claim. That decision was affirmed by an authorised review officer on 25 November 2002 and, in turn, by the Social Security Appeals Tribunal on 9 January 2003. On 13 February 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Appearances
2. The applicant attended the hearing but was not represented. Mr R McQuinlan appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
3. At the hearing, the following material was taken into evidence:
Exhibit 1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act1975 (the T documents: T1-T42); and
Exhibit 2 – a Statement of Facts an Contentions with annexures A, B and C.
Issues and Legislation
4. The issues in this matter are whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with section 94 of the Social Security Act 1991 (the Act) which, insofar as relevant, reads:
“(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 form 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.
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person - the availability to the person of work in the person’s locally accessible labour market.
(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.
(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.”
5. In accordance with that provision, the Tribunal must determine:
§whether the applicant has a physical, intellectual or psychiatric impairment; and, if so
§whether she has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) thereof; and, if so
§whether she has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.
6. To qualify for a disability support pension, all three of the requirements listed above must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of thirteen weeks starting immediately after the day on which her claim was lodged as provided for in clause 4, Part 2, Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) which reads:
“(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.”
7. The Tables in Schedule 1B of the Act with potential relevance in this matter read:
“TABLE 6. PSYCHIATRIC IMPAIRMENT
Rating
Criteria
NIL
Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
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).
TWENTY
Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms ). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
THIRTY
Serious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).
FORTY
Major chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious impairment in communication (eg. sometimes incoherent or unresponsive) or judgement (eg. acts grossly inappropriately).
TABLE 12. HEARING FUNCTION
Percentage Loss of Binaural Hearing
Rating
0 - 24.9
NIL
25 - 34.9
FIVE
35 - 44.9
TEN
45 - 54.9
FIFTEEN
55 - 64.9
TWENTY
65 - 74.9
TWENTY FIVE
75 - 84.9
THIRTY
85 - 94.9
THIRTY FIVE
95 – 100
FORTY
Consideration
8. The applicant, who was born on 10 December 1959, has been diagnosed by her treating doctor, Dr Smith, as having anxiety disorder and bilateral sensori-neural deafness in her left ear.
9. In relation to anxiety disorder, Dr Smith provided reports on 23 July 2001 where he said that the condition was “improving”; 15 February 2001 where he gave no indication of the severity of the condition; 16 April 2002 where he described the condition as “improving” and “fluctuating”; 29 July 2002 and 8 August 2002 where he described it as being “long term” and “fluctuating”; and 7 January 2003 where he described it as being “permanent”.. In her evidence, the applicant said that she had been taking anti-depressant medication for about two months and that this was the first time that she had been placed on medication for a psychiatric condition. She said that, on about a weekly basis, she suffers from a panic attack because of her anxiety which causes her difficulty in breathing for about five minutes.
10. Dr Smith has provided no guidance in respect of the relevant impairment rating that should apply under the Tables. However, a medical report was prepared on 1 October 2002 by Health Services Australia where the condition was described, at that time, as “fluctuating and temporary in nature”.. In that report, the practitioner declined to allocate an impairment rating.
11. In relation to the applicant’s hearing loss, an audiogram was completed on 23 September 2002 which revealed an 8.8% loss in her left ear. Again, the report of the Health Services Australia referred to that audiogram and allocated an impairment rating of Nil in accordance with Table 12.
12. Section 4 of Schedule 1B of the Act requires that a rating may only be assigned to a condition which is diagnosed and which has been “investigated, treated and stabilised”. Moreover, the effect of clause 4, Part 2, Schedule 2 of the Administration Act (see above) is that this requirement must be met at some time within the 13 weeks that commences from the date of the initial claim. This means that impairment ratings can only be assigned to conditions which meet that description in the applicant in the period from 8 August 2002 until 8 November 2002.
13. I am satisfied that the descriptions given by Dr Smith prior to January 2003 are consistent with the applicant’s psychiatric condition not being treated and stabilised in the period prior to November 2002. On that basis, and consistent with the report of Health Services Australia, no impairment rating can be allocated to it.
14. Table 12 is set out above and the rating allocated by Health Services Australia at the level of 8.8% hearing loss in the applicant’s left ear equates with a Nil impairment rating under that Table.
15. In her evidence, the applicant said that she had other health problems in part associated with the effects of a motor vehicle accident that she had in 1997. These have resulted in her experiencing symptoms of neck pain and lower back pain as well as generalised aches and pain in her joints, including her ankle. However, no firm diagnoses of conditions in respect of these complaints have been made and, again, I am satisfied that no impairment ratings may be allocated to them in respect of the relevant timeframe from 8 August 2002 to 8 November 2002.
16. I am satisfied that the applicant has a level of impairment as required by paragraph 94(1)(a) of the Act but I am also satisfied that the combined impairment is not sufficient to reach the threshold set by paragraph 94(1)(b) of the Act. This means that, as at the date of the claim or in any part of the 13 week period thereafter, the applicant does not meet one of the necessary criteria for payment of the disability support pension.
17. In relation to her work history, the applicant said she had never been in full-time employment but that she had worked in a newsagency and in a bakery for periods on a part-time basis but that this was more than 20 years ago. She said that she was separated from her husband in 1999 and more recently divorced and that, during her marriage, her husband had been the breadwinner. She said that, in recent times, she has been involved in a business selling Avon products and that she has no physical difficulty in the tasks that this involves including the driving of her vehicle and the delivery of products.
18. The applicant said that she is currently in receipt of parenting payment and that this had been the case since April this year. She said that, prior to that, there had been a period where her daughter was not living with her and when she was on newstart allowance. She said that, in that period, she was required to look for work but managed to find only one position which was in cleaning. She said that she only performed this on two days and would have continued with it except that her employer lost the contract and her work opportunity was brought to an end. She said that she thought that she would be able to undertake cleaning work but she was not sure whether she could do it on a full-time basis because of problems with her back and neck.
19. On that evidence, I am satisfied that the applicant does have an ability to work but, in any event, she is not qualified for the disability support pension as she does not meet the threshold level of impairment required under paragraph 94(1)(b) of the Act.
Decision
20. The Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .......................................................................................
AssociateDate of Hearing 10 October 2003
Date of Decision 29 October 2003
The Applicant appeared in Person
For the Respondent Mr R McQuinlan, Departmental Advocate
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