Wilson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 929

[2012] AATA 929 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1510
Re	TERENCE WILSON
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING,  COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr A Frazer, Member
Date	21 December 2012
Place	Perth

Decision Summary

The Tribunal affirms the decision under review. 

..(sgd) Dr A Frazer..................

Dr A Frazer, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairment – applicant’s impairments do not attract impairment rating of 20 under Impairment Tables – decision under review affirmed

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

REASONS FOR DECISION

Dr A Frazer, Member

21 December 2012

INTRODUCTION

1. Mr Wilson (“the applicant”), who is 57 years of age, made a claim for disability support pension (DSP) on 28 September 2011 in respect of his emphysema

2. On 3 October 2011 a Centrelink officer determined the applicant was not eligible for DSP.  Further clinical information was provided however on 18 January 2012 an authorised review officer (ARO) affirmed the decision because the applicant’s impairments did not rate at least 20 points on the Impairment Tables.

3. This decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 3 April 2012.

4. On 18 April 2012 the applicant made an application to this Tribunal for review of the SSAT’s decision.

   The Relevant Legislation

5. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:

   “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;

   …

   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 independently of a program of support within the next 2 years; and

   (b)       either:

   (i)        the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)       if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:    For work see subsection (5).

   …

   94(5)    In this section:

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

   (a)       education;

   (b)       pre‑vocational training;

   (c)       vocational training;

   (d)       vocational rehabilitation;

   (e)       work‑related training (including on‑the‑job training).

   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.

   …”

6. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 15-16 below.The Evidence

7. The evidence before the Tribunal comprised:

8. The “T Documents” lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”).

9. Exhibit  A1 Handwritten notes of current events

10. The oral evidence of the applicant.

    The Applicant’s Evidence

11. The applicant is 57 years old and lives alone on a 10 acre property.  He does light work such as pulling up weeds or replacing sprinklers for around 15 minutes.  He can drive a car for over an hour.  He has an old car he uses to drive around the property. He maintains the swimming pool that is in the front of the house although the bending is becoming harder.

12. The applicant said he had 2 collapsed lungs in 2008 and 2009 and then he was diagnosed with emphysema.  He now uses a puffer twice a day.

    The Relevant Medical Evidence

13. The most recent Treating Doctor’s Report from Dr Adesina dated 30 March 2012 stated the applicant suffered from centrilobar emohysema on CT lung and that he did not tolerate much exertion.

14. The respiratory function tests dated 23 January 2012 gave a baseline FVC of 3.37 from a predicted baseline of 3.70 giving a percentage of predicted of 91%  Following bronchodilator therapy this changed to 86%. He had a baseline FEV1 of 2.16 from a predicted of 2.99 giving a percentage of predicted value of 72%  Following bronchodilator this rose to 82%. The relevant figures for the purposes of interpreting the impairment tables were the figures of a baseline FVC of 91% that changed to 86% following bronchodilator therapy and the baseline FEV1 of 72% that increased to 82% with bronchodilator therapy.

15. The Impairment Tables    

    Table 2 states:

    Assignment of a Rating  %Predicted FEV1 or FVC“

    NIL  80  plus

    Analysis

    Impairments

16. It is common ground that, at all material times, the applicant has had a physical impairment, within the meaning of para (a) of s 94(1) of the Act, by reason of his suffering from emphysema.

17. The first matter for the Tribunal’s determination is whether the applicant, had a total impairment, by reason of the above condition, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.

18. The Tribunal has found that the applicant has nil points under the Impairment Tables. The applicant therefore does not satisfy s94(1)(b) of the Act

    CONCLUSION

19. The Tribunal concludes that the applicant has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act and that these impairments attract an impairment rating of NIL points. The applicant therefore does not satisfy paragraph (b) of s 94(1) of the Act.

20. That conclusion makes it unnecessary for the Tribunal also to consider whether the applicant satisfies paragraph (c) of s94(1) of the Act.

    DECISION

21. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member.

.....(sgd) T Freeman............

Associate

Dated  21 December 2012

Date(s) of hearing	12 October 2012
Applicant	In person
Counsel for the Respondent	Mr B Dube
Solicitors for the Respondent	Sparke Helmore