Tjandra and Secretary, Department of Social Services (Social services second review)

[2020] AATA 4086

Tjandra and Secretary, Department of Social Services (Social services second review) [2020] AATA 4086 (11 September 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1662

Re:Fonny Tjandra

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:11 September 2020

Date of written reasons:        14 October 2020

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

...........................[SGD].............................................

Senior Member M J McGrowdie

CATCHWORDS

SOCIAL SECURITY – sickness allowance – start date – incapacitated for work – definition of incapacitated – usual duties – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 666

WRITTEN REASONS FOR ORAL DECISION

Senior Member M J McGrowdie

14 October 2020

1. The decision under review in these proceedings is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 17 February 2020, which affirmed a decision of an Authorised Review Officer (ARO) of the Department of Human Services (now known as Services Australia) dated 11 September 2019 to grant Ms Tjandra (the applicant) sickness allowance from 12 February 2019.

2. For some years the applicant had been working in childcare and appears to have been very dedicated to her work. She developed health problems towards the end of 2018 and after much investigation she was found to have a colon cancer and subsequently underwent surgery.

3. She came to an arrangement with her employer where she could work a limited number of hours doing her usual duties. She had completed a traineeship, been employed as a casual and then became a permanent employee on 19 November 2018. As I say, the applicant subsequently fell ill and came under medical care.

4. The evidence today is consistent with the evidence given in support of her claim when the matter came before the AAT1.

5. There seems to be no dispute that the applicant reduced her hours from 12 December 2018. It is from that time the applicant says that she should have been eligible for sickness allowance. However, the application for the sickness allowance was not made until 15 January 2019 and there appears to be no entry in the records of Centrelink that suggests the applicant made earlier contact regarding an application for sickness allowance.

6. One must look to the medical reports or certificates available at the time of the application. There is an undated medical certificate from Dr Thi Le-Anh that was submitted to Centrelink on 29 January 2019, which indicated the applicant was currently able to do her usual work, study or do other employment in the nature of light duties, up to 15 hours per week.

7. There is no dispute that the applicant was unable to work full time hours at that time. There was a subsequent medical certificate from Dr Le-Anh dated 11 February 2019, which indicated the applicant was unfit, without qualification, for work from 12 February 2019 and was unable to do her usual work duties. That certificate was accepted by Centrelink.

8. The argument put forward by the respondent is that because the applicant was certified fit by her doctor to do her usual duties, albeit for lesser hours, means the applicant did not qualify for sickness benefits until 12 February 2019.

9. Section 666 of the Social Security Act 1991 (Cth) (the Act) sets out the qualification criteria for sickness allowance. Paragraph 666(1)(a) of the Act provides:

   (1)  A person is qualified for sickness allowance in respect of a period if:

   (a)  the person is incapacitated for work or study throughout the period because of sickness or an accident; and

   …

10. It appears that the use of the word 'incapacitated' is not the subject of any definition in the legislation. In its ordinary meaning in the English language, 'incapacity' can be taken to mean that a person is 'unable to do the person's usual work'.

11. Under subsection 666(2) of the Act, 'work' is defined as:

    (2)  In this section:

    work, in relation to a person, means work that the person has contracted to perform under a contract of employment that:

    (a)  the person had immediately before the person becomes incapacitated; and

    (b)  continues after the person becomes incapacitated.

12. The fact that the applicant was certified to do her usual work, although perhaps for lesser hours, does not, in my view, qualify as being incapacitated for usual work. An example given by the respondent as to why that should be the case on policy grounds, is such that a person who is employed to work 30 hours a week and is incapacitated to the extent of only being able to work 29 hours a week, would mean that the person would be entitled to sickness benefit in addition to the wages received for the hours worked.

13. It seems to me that the legislation should be approached in terms of the ordinary meaning of the words used without qualification, and incapacitated means unable to do the work which they were employed to do, and is not qualified by the number of hours that they are able to do at work. If the legislation, on the other hand, provided that a person was substantially incapacitated for work or partially incapacitated for work then a different result would follow.

14. In the present case, the applicant, in respect of the additional period of sickness allowance she claims, could not be said to have been incapacitated for her usual work.

15. For those reasons I affirm the decision made by the AAT1 on 17 February 2020.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

.................................[SGD].......................................

Associate

Dated: 14 October 2020

Date(s) of hearing:	11 September 2020
Applicant:	In person
Solicitors for the Respondent:	Services Australia