Stuart and Department of Family and Community Services

[2001] AATA 394

DECISION AND REASONS FOR DECISION [2001] AATA 394

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   V2000/1189

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      RICHARD STUART
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Mr J. Handley, Senior Member    

Date9 May 2001

PlaceMelbourne

Decision      The decision under review is affirmed.   
  ........Sgd. Mr J. Handley...........
  Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support benefit – impairment rating – continuing inability to work – whether qualifying criteria satisfied within 3 months of application – decision affirmed.
Social Security Act 1991 s.94
Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 s.24

REASONS FOR DECISION

9 May 2001 Mr J. Handley, Senior Member                

1. The applicant applies to review a decision made by the Social Security Appeals Tribunal ("SSAT") on 24 July 2000.  The SSAT then decided to affirm a decision made by the respondent in November 1999 to reject his application for Disability Support Benefit ("DSP"). 

2. The hearing of the application was convened in Ballarat.  Mr Stuart appeared without representation.  Mr Todd represented the respondent.

3. The application concerns a claim for DSP made in August 1999.  In March 2001 – in the month before the hearing of the application – the respondent conceded DSP with respect to a claim also made in March 2001.  This application therefore concerns entitlement to DSP between August 1999 and March 2001.  Within that period Mr Stuart was in receipt of either New Start Allowance or Sickness Allowance. 

4. Entitlement to DSP is governed by s.94 of the Social Security Act 1991. In so far as s.94(1) is concerned, Mr Stuart does have a physical impairment, he is greater than 16 years of age and he is an Australian resident. The issues in dispute in the current application are whether he had an impairment of 20 points or more under the impairment tables and whether he had a "continuing inability to work".

5. The physical impairment suffered by Mr Stuart relates to injuries to his lower back, neck, both shoulders and migraine headaches.

6. Doctor Hassett, the applicant's treating general practitioner, reported in May 1999 the applicant would not be fit for his usual work of 30 hours per week, and that it would be more than two years before it would be likely that he could resume work at 30 hours per week. 

7. The respondent had also obtained an opinion from Doctor Hedley Griffith who, in May 1999, assessed the applicant as having a capacity to work as a retail shop butcher.  Mr Stuart has work experience as a butcher and as a wool classer.   However, for my part I would find it astonishing that Mr Stuart would have had a capacity in May 1999 to be employed as a retail shop butcher.

8. In November 1999, the respondent arranged for Mr Stuart to be examined by Doctor Paulson from Health Services Australia.  That examination was for the purposes of providing an assessment with respect to the DSP claim.  At that time Doctor Paulson (T-24) provided an impairment rating of 30 points.  She decided however that Mr Stuart was fit for-

   "other suitable non-heavy full time work.  The work should not entail heavy lifting, repeated bending, repetitive pushing, pulling or reaching above shoulder height.  Suitable work could include light process or assembly work which can be performed at a bench or table, console – register operation" (T-24 p.162). 

9. Mr Stuart has been treated extensively by Mr John Bourke, an orthopaedic surgeon in Ballarat.  In a report of 14 February 2000 (T-31 p.176), Mr Bourke reported-

   "I have no doubt that this man could do sedentary work which did not stress his shoulders, his neck or his low back and which allowed him to change positions often.  However he is not trained for that type of work and his chances of getting it in the current economic climate are zero". 

10. The assessment of Doctor Hassett was provided three or four months prior to the claim which has given rise to this application, and is inconsistent with opinions more recently expressed by Mr Bourke.  Mr Bourke concluded – after assessing the applicant's neck, lumbar spine and shoulders, in another report dated 5 September 2000-

    "at a minimum this gives him a (sic) 30 points and at a maximum 35". 

11. The applicant's claim is dated 5 August 1999, and was received by the respondent on 15 August 1999. The date 15 August 1999 is the "provisional commencement day" for the purposes of s.100(1) of the Social Security Act 1991 ("the Act"). Section 100(3) provides that if a claim is lodged for DSP and a person is not qualified on that date for DSP, the provisional commencement day is the date the person is qualified. If a person becomes qualified for DSP beyond three months, DSP is not payable. Section 100(3) was repealed by s.24 of the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999, but operates only from 20 March 2000. Section 100(3) therefore existed at the date of claim and, significantly, within the three-month period in issue in these proceedings.

12. The period of three months from 15 August 1999 expired on 8 November 1999.  At that date Doctor Paulson, who examined on behalf of the respondent, found that the applicant had exceeded 20 impairment points but did not have a "continuing inability to work" (refer paragraph 8).  I note also that at February 2000, Doctor Bourke who treated the applicant, did not certify that the applicant had a "continuing inability to work" (refer paragraph 9).

13. Even if the applicant did obtain evidence after the period of three months that he qualified for DSP, he could not be entitled to payment of it for the above reasons.

14. Mr Stuart was curious to know the reasons why he had been granted DSP in March 2001, when so far as he was aware there was very little change in his injuries in the proceeding 2 years.  The reasons for the granting of pension were not known.  Indeed Mr Todd and Mr Stuart did not know that the pension had been granted until the night before hearing.  Whether the respondent granted the pension because it has become satisfied after more than two years of claiming that the conditions may be regarded as being permanent (this was the subject of some earlier controversy) is not known.

15. For these reasons I have no alternative but to find that the decision under review must be affirmed.

    I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

    Signed:         .........Carolyn Irons......................................
      Secretary

    Date/s of Hearing  6 April 2001
    Date of Decision  8 May 2001
    Counsel for the Applicant        unrepresented
    Solicitor for the Applicant          
    Counsel for the Respondent    Mr M. Todd, Departmental Representative
    Solicitor for the Respondent