Toma and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1352
•23 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1352
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1623
GENERAL ADMINISTRATIVE DIVISION ) Re ROOMAIL TOMA Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date23 May 2007
PlaceSydney
Decision The decision under review is affirmed. .................[sgd].............................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision under review is affirmed
Social Security Act 1991 – section 94 and Schedule 1B
Administrative Appeals Tribunal Act 1975 – section 37
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Re Tlonan and Department of Social Security (1997) 24 AAR 467
Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249
Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
REASONS FOR DECISION
23 May 2007 Ms N Isenberg, Senior Member DECISION UNDER REVIEW
1. Mr Toma’s disability support pension (“DSP”), which he had received since 2000, was cancelled by Centrelink on 3 April 2006. While Centrelink, on behalf of the Secretary of the Department of Employment and Workplace Relations, agreed that Mr Toma has a physical impairment, as a result of the amputation of his right foot, and that he also suffers from depression, Centrelink did not agree that his various impairments attracted the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (“the Act”). Nor did Centrelink agree that Mr Toma met a further requirement for eligibility for the DSP, that is, a continuing inability to work. These requirements are set out in section 94 of the Act and as at the time of Centrelink’s decision were as follows:
“94 Qualification for disability support pension
94(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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
…
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
94(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 from 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.
Note: For work see subsection (5).
…
94(5) In this section:
…
work means work:
(a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
…”
BACKGROUND
2. Mr Toma was born in Iraq on 1 June 1958. In 1982 he was injured in a bomb blast, which resulted in the amputation of his right foot. Mr Toma required several surgical operations in the following years, the last in 2000. He now wears a prosthetic foot. In 1999 he moved to Australia.
3. Mr Toma applied for and was granted the DSP with effect from 22 February 2000.
4. Following a Work Capacity/Participation Assessment conducted by a Psychologist/Rehabilitation Consultant on 14 March 2006 Mr Toma’s entitlement to the DSP was reviewed. This assessment concluded that he had an immediate capacity for fulltime employment on the basis that he experienced minimal pain and functional loss from the amputated foot and that his depression was a temporary condition. On these grounds Centrelink considered Mr Toma was unable to meet the necessary criteria for the DSP, and it was cancelled on 3 April 2006. That decision was affirmed by an Authorised Review Officer (ARO) on 4 August 2006 and by the Social Security Appeals Tribunal on 27 October 2006.
ISSUE BEFORE THE TRIBUNAL
5. The issues to be determined with relation to this matter are:
a)Does Mr Toma have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,
b)Does he have a continuing inability to work due to the impairment because:
· the impairment of itself prevents him from doing any work for at least 30 hours per week on wages at or above the relevant minimum wage within the next two years; and either
· the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on-the-job training during the next two years; or
· if the impairment doesn’t prevent the person undertaking training such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.
EVIDENCE
6. In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), further documents were tendered. These documents included:
·Pay advice issued by Integrated Group for Mr Toma dated 13 September 2006 (Exhibit 1), and
·Treating Doctor’s Report (“TDR”) completed by Dr Guirguis on 12 April 2007 for Mr Toma (Exhibit 2).
7. Mr Toma gave evidence and was cross-examined on behalf of the Secretary of the Department of Employment and Workplace Relations. I also asked him questions.
8. I asked Mr Toma to specifically comment on his conditions as at the date of the cancellation of his DSP, and not his current symptoms. This approach is consistent with that in Freeman v Secretary,Department of Social Security (1988) 15 ALD 671.
CONSIDERATION OF THE EVIDENCE and FINDINGS
9. In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.
10. From the outset Mr Toma made it clear that he does not actually want the DSP. He wants a job.
11. He expressed significant frustration with Job Network, which is charged with finding job seekers work. His daughter, Olivia, who attended the hearing, echoed her father’s frustration, speaking of a lack of interpreters and general inattention to, and disinterest in, her father’s strong wish to have a job. She has taken time off work in order to assist her father because of the lack of support provided by the Job Network member he dealt with. Mr Toma felt he had no avenue for complaint.
12. I told Mr Toma that unfortunately my role was confined to his entitlement to the DSP. However, Ms Furner, the advocate for Centrelink, offered to pass on the Toma family’s concerns about the level of service provided by the Job Network member, and agreed to obtain more information in relation to their complaints after the hearing.
13. I now turn to the matter I must decide.
Did Mr Toma, at 3 April 2006 have a physical, intellectual or psychiatric impairment of 20 points or more?
Amputated right foot
14. Mr Toma gave evidence of having his right foot amputated, and a prosthesis fitted in 2000. He said that since the initial period following correction of the amputation and the subsequent fitting of the prosthesis his foot has been relatively pain free.
15. Mr Toma told me that he cannot walk long distances, but had managed to come to the Tribunal by train, and walk from the station. He can walk at a normal pace, but if he rushes he will tire easily. If he walks for 30 minutes to an hour he will feel tired. However, after resting he can walk further. He can use stairs providing there is a handrail. His main limitation is that he cannot do heavy lifting (such as boxes weighing 30 kilograms) because of his reduced balance. He can drive a car without difficulty and can stand at a bench. It is only in respect of carrying that he has a problem.
16. He told me of the job he obtained through Integrated Workforce where he had worked for 2 weeks in September 2006. He stated he worked 12 hour shifts on the production line, alternating every hour between making and packaging breadcrumbs. He was “very happy” with that job and had no problem in standing at work all day.
17. By contrast with Mr Toma’s own evidence, Dr Guirguis, in his TDR dated 1 February 2006, indicated that the amputation caused Mr Toma to be unable to stand for more than 5 minutes, that he could walk no more than 100 metres and could not use stairs or a ladder.
18. In a Work Capacity/Participation Assessment completed by Ms Deborah Shand, Psychologist/Rehabilitation Consultant, Advanced Personnel Management, dated 14 March 2006 Mr Toma’s right foot amputation was considered to be a condition which attracted 10 points under Table 4. Her report recorded that Mr Toma no longer needed painkillers, was able to walk for 30 minutes, and stand for 30 minutes, although this produced backache. He was said to be able to manage some, but not a lot of stairs, and Mr Toma demonstrated his ability to walk down stairs without using a handrail. He was observed to walk without obvious limp or gait.
19. Centrelink, apparently relying on Ms Shand’s report, assessed Mr Toma at 10 impairment points pursuant to Table 4, whereas previously he had been assessed at 20 points. The relevant parts of that Table provide:
“TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
…
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250‑500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50‑250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self‑propelled wheelchair.
…”
20. The Impairment Tables, as set out in Schedule 1B of the Act, are designed to assess impairment in relation to work. The Tables give particular emphasis to the loss of a person’s functional capacity in comparison with a fully able person. Generally, the more a person’s impairment affects their ability to do work-related tasks, the higher the impairment rating that will be assigned.
21. I have no hesitation in accepting that the circumstances by which Mr Toma’s foot was injured were horrific. The amputation and subsequent fitting of the prosthesis were also, no doubt, very distressing experiences. To his credit though Mr Toma describes himself as “very happy” following the fitting of the prosthesis, having regard to his increased mobility and pain reduction. While he still occasionally has pain for which he might take painkillers, for the most part he has adapted very well to his disability. It has obviously created difficulties in his life, but he has managed to function very well in the circumstances.
22. I consider that the descriptor associated with 10 impairment points best describes his condition at the date of cancellation of his DSP.
Depression
23. Centrelink’s position was that Mr Toma’s depression was not to be given an impairment rating because it was not a permanent condition. According to the Introduction to Schedule 1B of the Act (“Introduction”) which contains the Tables for the Assessment of Work-Related Impairment for DSP a condition must be fully documented, diagnosed, investigated, treated and stabilised before consideration can be given to its permanence. For a condition to be considered permanent it is not sufficient for the condition to be longstanding. To be considered permanent it must, on the evidence, be more likely than not that the condition will persist for more than two years. The Introduction relevantly states:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. …
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.”
24. A Guide to the Tables for the Assessment of Work-Related Impairment for the Disability Support Pension (“The Guide”) provides further clarification of the above in Chapter 1 at (K) and states in part as follows:
“3. Fully Treated – impact of “reasonable treatment” on stability:
In determining the permanence of a person’s medical condition and its resulting impairment(s), one must consider whether the person has received optimal medical management and all reasonable treatment for the condition. This can be taken to include therapy (eg physiotherapy) involving the primary and secondary stages of rehabilitation aimed at restoring mental or physical functional stability but usually does not extend to tertiary rehabilitation involving specific vocational programs. The stability of a condition and the permanence of its impairment may depend on whether reasonable treatment has been undertaken.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible (ie available locally at a reasonable cost) – For example, it would not be appropriate to expect that a person undergo prohibitively expensive treatment, or treatment that is only available in another state or country in order to satisfy the permanence criteria.
·treatment or procedure that is of a type regularly undertaken or performed – For example, treatments that are experimental in nature or not yet widely accepted or performed by the general medical community would not be considered reasonable. Treatment is taken to refer to conventional western medical therapy and does not refer to alternative therapies.
·treatment that has a high success rate and where substantial improvement can be reliably expected – It would be inappropriate to consider an impairment as being temporary solely because the person has not undertaken a treatment that has a poor success rate or that is likely to result in only marginal functional improvement.
·treatment that is of a low risk nature – A person may decide against undertaking a certain treatment because it has serious associated risks (eg a major surgical procedure) or unavoidable and significant side effects (eg chemotherapy) even though their treating specialist has indicated that the treatment may have a good chance of a successful outcome. The risk assessment of whether to proceed with a treatment should be a fully informed decision that is medically appropriate.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment. However, if the person has decided against proceeding with reasonable treatment that is likely to result in significant improvement, the impairment would not be considered stabilised unless there is a medical or other compelling reason for not undertaking treatment.
A permanent impairment rating is not assigned if compelling grounds do not exist but the following should be documented: what reasonable treatment is feasible that will result in significant improvement, the risks and side effects of the treatment, why the treatment is considered medically reasonable and the person’s reasons for choosing not to undertake this treatment. Some reasons that may be considered compelling grounds for not proceeding with treatment are described below.
4. Fully Stabilised – no improvement over next two years:
For a condition’s impairment to be fully stabilised, it must be considered that with or without treatment, significant functional improvement is unlikely to occur within the next two years. Medical evaluation is required to assess the prognosis for further improvement within the next two years and factors such as the natural history of the condition, response to treatment and expected rate of recovery will need to be considered. It should be noted that “stability” as used in this context has a more specific meaning than that in common usage. The following examples illustrate further the restricted meaning of “fully stabilised”.
·As indicated above, a medical condition and its resulting impairment is not considered fully stabilised if available treatment that may result in significant improvement within the next two years has not been undertaken. However, if the person has a medical or other compelling reason for not proceeding with such treatment, then it may be reasonable to consider the condition stabilised if no further improvement is expected. Such compelling reasons may include:
-The treatment is not considered “reasonable” as defined above (eg high-risk procedure, poor chance of significant improvement etc.)
-The person has religious or cultural beliefs prohibiting treatment (eg blood transfusions)
-The person lacks insight or the ability to make appropriate judgements due to their medical condition and are unlikely to comply with treatment (eg a person with a severe psychotic illness or dementia).
-The person has significant morbid fear of a treatment procedure (eg even minor surgery).
If a person has not had reasonable treatment due to factors that are not of a compelling nature, (eg lack of personal motivation that is not related to a medical basis), then their condition and impairment would not be considered fully treated and stabilised…”
25. By way of background, I note that Mr Toma reported the condition in 2000 when he first claimed the DSP. In support of that application, in a TDR of 5 February 2000, Dr Guirguis recorded Mr Toma as suffering “chronic depression” and gave the date of onset as 1982. The symptoms described by Dr Guirguis included “insomnia, irritability, nervousness, sadness and easy fatigue [and] panic episodes”. According to Dr Guirguis Mr Toma’s condition was long term, fluctuating and constant. In respect of treatment, counselling and antidepressants were referred to. On 6 March 2000 a Medical Assessment Report (“MAR”) was completed by Dr T Kanapathipillai from Health Services Australia (“HSA”). Dr Kanapathipillai, who conducted an interview with Mr Toma with the assistance of an interpreter, understood the condition to have persisted for 3 years and was related to financial difficulties that appear to have coincided with the period Mr Toma spent in Turkey before coming to Australia. Dr Kanapathipillai concluded Mr Toma’s depression was untreated and hence temporary and considered that it was likely to improve with treatment within 6 to 12 months.
26. Dr Guirguis provided much the same information as before concerning Mr Toma’s depression in his two subsequent TDRs dated 7 April 2000 and 13 April 2000. On 14 May 2000 a file review was conducted by Dr David Keen, Senior Medical Advisor, HSA, which indicated that based on the information that had become available since the MAR that an impairment rating of 10 was appropriate under Table 6 for Mr Toma’s depression. In his file review Dr Keen acknowledged that Mr Toma’s chronic depression was being treated by his GP and that it was likely to be ongoing.
27. Payment of Mr Toma’s DSP was subject to a medical review in early 2002. In a further TDR supplied by Dr Guirguis, dated 14 February 2002, the doctor wrote that Mr Toma’s depression was a long term, fluctuating condition that was being treated by counselling and antidepressants. He indicated that Mr Toma was still suffering feelings of sadness, insomnia, panic episodes and easy fatigue, and reported that Mr Toma was also experiencing dizziness. In the form Mr Toma was requested to fill out himself he reported suffering problems concentrating and remembering all the time and often having problems sleeping and interacting with others. On 22 February 2002 Dr Bahari, a medical adviser at HSA, assessed Mr Toma’s depression at 10 impairment points under Table 6 on the basis that it was being treated and Mr Toma was experiencing regular symptoms. In her file review Dr Bahari stated the condition was chronic and unlikely to improve.
28. In early 2006 payment of Mr Toma’s DSP was again subject to a review, referred to on this occasion as a Medical Service Update. In his TDR of 1 February 2006 Dr Guirguis wrote that Mr Toma had “mood impairment as a result of body trauma”. He wrote that Mr Toma’s symptoms were “insomnia, sadness, panic, dizziness, headaches, nervous (sic), irritable (sic) [and] decreased libido”. As to the impact upon his ability to function Dr Guirguis wrote of Mr Toma’s inability to concentrate. He wrote that counselling and antidepressants had been prescribed. Dr Guirguis considered that the condition’s current impact on the patient’s ability to function was expected to persist for more than 24 months. He also indicated that he expected that within the following 2 years the effect of the condition on Mr Toma’s ability to function would fluctuate. In the form Mr Toma completed he reported having problems all the time with concentrating, remembering, interacting with others and sleeping.
29. In her Work Capacity/Participation Assessment Report dated 14 March 2006 Ms Shand considered Mr Toma’s depression to be temporary as it had not been optimally treated because there had been no “psych intervention”. She wrote that Mr Toma told her that his depression had started about 3 years before due to the situation in the Middle East. More specifically, Ms Shand understood Mr Toma’s main concerns to centre on the safety of his sister and her family in Iraq and the burden of sending money to his family overseas, as well as his feeling of being alone in Australia. He reported to her that he suffered occasional insomnia, anxiety and nervousness. She noted he had not experienced appetite disturbance, concentration symptoms or panic symptoms.
30. Apparently relying on Ms Shand’s report, Centrelink decided that his condition was not permanent, and accordingly was not rateable.
31. Mr Toma told me that when he is depressed he is short with his wife and wants to hit her. The family leaves him alone when he is like that. His condition has been exacerbated by his inability to get a job and by his high level of frustration with Job Network. He had to take 2 months off his English language studies because of difficulty concentrating. At the hearing he appeared distressed when speaking of his frustration.
32. I note that Mr Toma has been diagnosed with depression from as early as 2000, possibly (and understandably) dating back to when he lost his foot in 1982. Mr Toma has been taking anti-depressants for 2 to 3 years and is seeing a counsellor weekly. He told me that he did not need a psychiatrist: he knows what his problem is - he needs a job.
33. Previous decisions of the Tribunal have held that an Applicant's failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been “fully treated”: Re Tlonan and Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management treatment). In the present case, however, Mr Toma has closely followed the advice of his doctor.
34. I therefore find that his condition, having been investigated, treated and stabilised, is appropriately considered to be permanent.
35. I next turn to consider the appropriate impairment rating.
36. On balance, I consider that it is appropriate to allocate 10 points in respect of his depression under Table 6, the descriptor for which provides:
“TABLE 6. PSYCHIATRIC IMPAIRMENT
…
Rating Criteria
…
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).
…”
37. In coming to this view I note Mr Toma’s continuing sense of frustration and anger and that he has difficulty concentrating.
Combined impairment
38. Taken together, I consider Mr Toma’s combined impairment equals 20 impairment points.
39. I therefore turn to the remaining question:
Does Mr Toma have a continuing inability to work because of the impairment?
40. Centrelink contended that the evidence supports a finding that Mr Toma’s impairments would not prevent him from undertaking work or training or education that would enable him to return to work within 2 years. The psychologist/rehabilitation consultant who saw Mr Toma concluded that he was capable of working over 30 hours per week. Indeed, Ms Shand noted Mr Toma was very keen to work.
41. Mr Toma gave evidence of having worked for 2 weeks on a production line in September 2006. He stated he worked a 60 hour week. He said his supervisor said he had never seen anyone with a disability work like him and that his supervisor was very disappointed when the manager let Mr Toma go at the end of 2 weeks. He thought there may have been a concern about workers’ compensation because of his condition. The supervisor hoped he would be able to get Mr Toma back on the production line in another position, but nothing has been forthcoming. Mr Toma has sought other jobs - mainly on production lines or in warehouses - and was very despondent not to have been successful in any of his applications. Again, he thought his disability was a major factor in being rejected for positions.
42. Assessment of Mr Toma‘s continuing “inability to work” must be made in accordance with the legislation as explained by Drummond J in Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444, where the Court set out at 452 to 453 the relevant questions:
“As to s 94 (2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?”
43. Mr Toma clearly has no difficulties working on a production line: indeed that type of work, or similar, such as working in a warehouse, is what he seeks.
44. I find that Mr Toma is not prevented, by virtue of his incapacity, from doing work of a kind which he is, by reason of his existing work skills and experience, capable of performing, without the need for retraining.
45. I must therefore find that Mr Toma was, on 3 April 2006, not qualified for the DSP because although he has an impairment, which is properly rated at at least 20 points under the Impairment Tables, he does not have a continuing inability to undertake any work for at least 30 hours per week in the next two years.
46. In coming to this view I again note, with some admiration, that Mr Toma’s position was that he did not seek the DSP; just a job – any job.This is an unusual situation because most DSP applicants seek that pension because they believe that they are not realistically able to work.
47. Mr Toma is taking English classes to improve his prospects of getting a job. His determination and self-belief is most commendable.
48. I was assured by the Centrelink advocate that Mr Toma currently receives Newstart allowance, a condition of which is that he seek work. In her Job Capacity Assessment of 6 March 2007, Ms Shand recommended that Mr Toma would benefit further from the additional specialist disability knowledge and expertise available through the Disability Employment Network rather than a Job Network member, in order to gain and maintain employment in the open labour market. Hopefully this recommendation will be acted on and Mr Toma will soon be successful in attaining full time employment.
DECISION
49. The decision under review is affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ...[sgd]................................
AssociateDate of Hearing 2 May 2007
Date of Decision 23 May 2007
Appearance for Applicant Self-representedAdvocate for the Respondent Ms J Furner of Centrelink, Legal Services Branch
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