Thomas and Secretary, Department of Family and Community Services

[2003] AATA 513

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 513

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2002/27

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CHRISTOPHER RUSSELL THOMAS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date21 May 2003  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution determines that the entitlement to Disability Support Pension of Christopher Russell Thomas should not have been cancelled on 8 September 2001. 

..............Signed....................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – disability support pension – continuing inability to work

Social Security Act 1991: s 94

REASONS FOR DECISION

Deputy President Don Muller       

1.      This is an application to review a decision made by a Centrelink officer on 8 September 2001, to cancel the entitlement of Christopher Russell Thomas to disability support pension (DSP).

2.      The Applicant was born on 10 December 1946.  At the date of hearing he was 56 years of age.

3.      The Applicant was born with a severely deformed spine.  In particular, his neck and upper back regions were affected most by deformity.

4.      The Applicant is poorly educated and has no trade skills.  He does not have a drivers licence.

5.      The Applicant was fortunate in being able to work for about 30 years.  He obtained jobs with the aid of friends and relations who were able to find positions for him.  He left school at 16 years of age and did unskilled work for about ten different printers in the Melbourne area for 20 years.  He then obtained a cleaners job at the Victorian Railways where he remained for ten years.  He was subsequently made redundant and has not been able to get a job since.  He has not worked for about ten years.

6.      The Applicant had been receiving DSP for many years when a decision was made on 8 September 2001 to cancel his DSP.

7.      The Applicant’s spine was x-rayed on 1 August 2002.  The report contains the following:

“CERVICAL SPINE

The multiple cervical fusions are noted.  There appears to have been fusion at the C3-4 level and also the C5, 6 and 7 levels.  There is a degenerate spondylotic narrow disc space at C4-5 and there is a narrowed space at C2-3.  There are fusions of the posterior elements at those other levels also.  The AP view shows a levo-convex scoliosis.  It has been difficult to demonstrate the odontoid process and there may well be deformity there.  In the lateral view the odontoid and C1 appear intact.  C1 is a little hypoplastic.  The AP projections also imply there are multiple fusions in the upper thoracic vertebrae.  Oblique views show moderate foraminal narrowing on the left side at the mid segments and the foramina are reasonably widely.”

8.      On 1 August 2002, the Orthopaedics Registrar of Royal Darwin Hospital, Dr. Beaumond, reported as follows:

“This 56 yo ♂ has severe cervical spine degeneration on a background of congenital fusions.  No neurological symptoms.  Xrays conclusive.

This man has done very well given his condition and easily justifies a disability support pension as he is not capable of manual work.”

9.      The Applicant also has diabetes, an alcohol problem and a “bad shoulder” which he associates with a broken collar bone which he had some years ago.

10. The criteria for qualification for DSP are contained in section 94 of the Social Security Act 1991.  There is no dispute that the Applicant has a physical impairment and that his impairment is of 20 points or more under the impairment tables.  The question for determination is whether he has a “continuing inability to work” within the meaning of that term in the section.

11.     The Applicant gave evidence at the hearing.  The Tribunal accepts him as an honest and reliable witness.  It was very clear to the Tribunal that:

(a)The Applicant enjoyed his time in the workforce.  He was disappointed when he was sacked.  He would prefer to still be working.

(b)The Applicant is, for all practical purposes, unemployable.  He is poorly educated, has no skills, cannot do the manual labour which he managed to do for about 30 years, appears to be at the lower end of the intelligence spectrum.

(c)There is no retraining which he could undertake which would enable him to do any work within the next two years.

(d)Dr. Beaumond was right when he reported that the Applicant has done very well to have been able to work for 30 years.

12.     The Tribunal was impressed by the Applicant’s good work history and his desire to continue to work.  However, the fact is that he has not worked for ten years and is most unlikely to ever work again.  In practical terms, there is no paid employment which he would be capable of working at for at least 30 hours per week and it is most unlikely that there is any potential employer who would employ him.  He simply has a continuing inability to work.

13.     The Tribunal sets aside the decision under review and in substitution determines that the Applicant’s entitlement to DSP should not have been cancelled on 8 September 2001.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  21 May 2003
Date of Decision  21 May 2003      
Solicitor for the Applicant          Mr. Tranthem, Darwin Legal Service
Respondent  Mr. T. French, departmental advocate