Walker and Department of Education, Employment and Workplace Relations

[2008] AATA 563

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 563

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0973

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL WALKER

Applicant

And DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr R McRae, Member

Date2 July 2008

PlaceMelbourne

Decision The decision under review is affirmed.  

....................[Sgd].....................

Dr R McRae
  Member

SOCIAL SECURITY ‑ disability support pension cancellation‑ grand mal epilepsy ‑ back pain ‑ whether 20 impairment points - continuing inability to work ‑ whether able to work 30 hours per week ‑ decision under review affirmed.

Social Security Act 1991 s 94(1) and (5), Sch 1B

A Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension Introduction para (4), (5), (6)

REASONS FOR DECISION

Dr R McRae, Member        

1. Mr Michael Walker (the Applicant) seeks a review of a decision by the Social Security Appeals Tribunal (SSAT) dated 15 February 2007 to cancel his Disability Support Pension (DSP). On 10 October 2006 a Centrelink officer cancelled the Applicant’s DSP because he failed to satisfy s94(1) of the Social Security Act 1991 (the Act).  The Applicant sought review of that decision.  An authorised review officer affirmed the decision on 21 November 2006, as did the SSAT subsequently.  Centrelink acts as the service delivery agency for the Secretary to the Department of Education, Employment and Workplace Relations. (the Respondent). 

2. The issue for the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s94(1) of the Act at the time his DSP was cancelled on 10 October 2006. The Tribunal’s decision is that the Applicant is not entitled to DSP.

3. The Applicant was self-represented and appeared by telephone. The Respondent was represented by Mr A Carson, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents). 

Background

4.      The Applicant is a 41 year old single man, who received the DSP from 14 June 2000.  From 14 June 2000 to 14 February 2003, there were several periods where the Applicant’s DSP was suspended.  It recommenced on 14 February 2003.  DSP continued until cancellation on 10 October 2006 following a review which related to the medical qualification required for DSP.  Since 10 October 2006 the applicant has received newstart allowance (NA).  

5.      The Applicant had a motorcycle accident in the late 1980s and has had back pain and limited movement since then.  He has had grand mal epilepsy since 1986, which is managed with medication.  He has one to two seizure episodes each year.  He has a history of substance abuse and has attended detoxification programs. 

6.      Dr Ian Chau, the Applicant’s local general practitioner since 1987, completed a Treating Doctor’s Report (TDR) dated 9 May 2006. The TDR listed epilepsy as a diagnosis with nil symptoms and episodic fits (Dr Chau stated [the Applicant] says had one fit this year).  He stated the Applicant had self ceased medications, although he placed a cross in the box indicating the Applicant is usually compliant.  There is an uncertain current impact on the Applicant’s ability to function, as [the Applicant] says fit may come without warning.  Dr Chau also listed the diagnosis of back pain, which was chronic, no pain in buttock or legs, had current symptoms of pain and limited mobility; and there was nil current treatment.  The back pain had an uncertain current impact and clinical trajectory on the Applicant.  Dr Chau’s second TDR, dated 26 October 2006, only listed epilepsy as a diagnosis and was effectively identical to the 9 May TDR other than noting that epilepsy would fluctuate as epilepsy is episodic. 

7.      Dr L Liew, of Health Services Australia Ltd (HSA), examined the Applicant on behalf of Centrelink in relation to transfer to NA on 28 June 2006.  He provided a medical assessment report, dated 27 July 2006, indicating that the Applicant was fit for full time semi sedentary light duties [and] that [he] avoid height and machinery.  He assigned an impairment rating of 10 points according to Impairment Table 5.2 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables), in Schedule 1B of the Act, for back pain for loss of 1/4 [range of movement] and pain with activities.  He considered epilepsy as temporary due to instability through recent change in medication, and the prospect of improvement potential.  As a temporary condition he was unable to assign it an impairment rating under the Tables. 

8.      Centrelink corresponded with the Applicant on 2 August 2006 stating DSP would cease on 13 September 2006.  However, DSP payments continued to 9 October 2006. 

Applicants submission

9.      The Applicant stated his DSP was cancelled because Dr Chau had filled in the TDR form incorrectly.  The Applicant stated epilepsy is a permanent condition as he could have a fit at any time.  The Applicant had forwarded a letter to Centrelink detailing his hospital admissions for epilepsy about a month ago.  The Applicant did not provide any new medical evidence at the hearing. 

10.     Under cross-examination, the Applicant stated that at the time of DSP cancellation he had changed [his medication from] Epilim to Rivotril.  He was still having seizures.

Respondent’s Submission

11.     The Respondent submitted that the Applicant did not have a physical impairment that achieves 20 points or more under the Tables.  Further, the Applicant did not have a continuing inability to work 30 or more hours per week at the time of cancellation.  The Respondent submitted that there is no impairment that would prevent educational or vocational training. 

Legislation

12. Section 94(1) of the Act provides that:

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)…

13.     Chapter 1 of the Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension provides that:

Work is defined in section 94(5) of the Social Security Act 1991.  For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.

Findings

14.     The Applicant was granted DSP on 14 June 2000.  DSP was cancelled on 10 October 2006.  

15.     Reasonably contemporaneous and consistent medical assessments have been performed by Drs Chau and Liew. The Applicant has a physical impairment of chronic back pain which is permanent and has consistently received an impairment rating of 10 points.  However, this does not satisfy the criteria of 20 impairment rating points required by the legislation. 

16.     The Applicant placed much focus on the medical, as opposed to the legal, concept of temporary and permanent.  The epilepsy condition is correctly considered as temporary within the provisions of the Act.  It is correct that no impairment points can be allocated to the epilepsy condition. 

17.     The evidence is consistent in that there is no continuing inability to work for at least 30 hours per week for award wages due to permanent physical impairment. Dr Liew assessed the Applicant as fit for full time semi sedentary light duties that avoid height and machinery.  

Conclusion

18. The Applicant satisfies s94(1)(a) of the Act in that he has chronic permanent back pain. However, the Applicant does not satisfy s 94(1)(b) of the Act in that he does not attract 20 impairment points. as required by the Act.

19.     The Tribunal concludes that at the time of his DSP cancellation the Applicant did not satisfy the requirements necessary to qualify for DSP. 

Decision

20.     Accordingly, the decision to cancel DSP was the correct decision.  The Tribunal affirms the decision of the SSAT made on 15 February 2007.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of

Dr R. McRae, Member

Signed:         Sanjiv Shah

(Clerk)

Date of Hearing  18 March 2008
Date of Decision  2 July 2008
Advocate for the Applicant       Self Represented

Advocate for the Respondent   Mr A. Carson, Centrelink Legal Services