Woodiwiss and Secretary, Department of Family and Community Servi Ces

[2003] AATA 846

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 846

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/104

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANITA OLIVE WOODIWISS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date29 August 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension - impairment - binaural hearing loss - continuing inability to work - suitable work - jobsearch - ongoing support.

Legislation

Social Security Act 1991 - s94 and Schedule 1B

Social Security (Administration) Act 1996

Guide to the Social Security Law

Authorities

Re Secretary, Department of Social Security and Chin (1998) AATA 197

Re Francis and Secretary, Department of Family and Community Services (1999) AATA 941

Re Secretary, Department of Family and Community Services and Pusnjak (1999) 164 ALR 572

Re Rowbottom and Secretary, Department of Family and Community Services (1999) AATA 553

Re Secretary, Department of Family and Community Services (2001) AATA 197

REASONS FOR DECISION

29 August 2003 Associate Professor B W Davis AM (Part-time Member)   

Decision Under review

1.      The decision under review is a decision made by a Centrelink officer on 15 April 2002, subsequently affirmed by the Social Security Appeals Tribunal on 2 July 2002, to reject the applicant’s claim for disability support pension.

Issues

2.      The issues in this case are:

(a)Does Miss Woodiwiss have a physical, intellectual or psychiatric impairment as defined in the Act? That is, does she have a diagnosed condition that has been investigated, treated and stabilised, and is likely to continue for at least two years?

(b)Does Miss Woodiwiss’s impairment rate at least 20 points on the impairment Tables set out in Schedule 1B of the Act?

(c)Does Miss Woodiwiss have a continuing inability to work because of the impairment in that:

(i)the impairment is of itself sufficient to prevent her from doing any work within the next two years; and

(ii)the impairment is of itself sufficient to prevent her undertaking educational, vocational or on-the-job training during the next two years, or, if it does not prevent her, the retraining is unlikely, because of the impairment, to enable her to do any work within two years?

3. These requirements are set out in s94 of the Social Security Act 1991 (“the Act”) and the accompanying Impairment Tables in Schedule 1B of the Act.

Background

4.      Miss Woodiwiss initially claimed disability support pension (DSP) on 29 January 2002.

5.      She underwent a Health Services Australia (HSA) nurse assessment on 6 March 2002 and a report was finalised on 8 March 2002.   The report acknowledged that Miss Woodiwiss has a severe binaural hearing loss, with an impairment rating of 35 points.    She received zero points for asthma and amblyopia.   In addition HSA considered that Miss Woodiwiss was fit for full-time work.

6.      Following a process of review Miss Woodiwiss’s case was referred to an Authorised Review Officer (ARO), who examined the evidence and affirmed the original decision on 10 May 2002.

7.      The ARO informed the applicant there was no dispute she has a medical impairment, which rates a score of 35 points on the Combined Impairment Tables.   However another part of requirements for DSP is the person’s ability to find and take up suitable employment.    As Miss Woodiwiss had been employed by Blue Ribbon Meats until recently, and the reason for termination of her employment was not because of impairment, the ARO concluded she is capable of working 30 hours per week in the next 2 years in a variety of jobs.   He also stated that the Disability Officer of Centrelink had concurred that the main factor in rejection of DSP was her ongoing ability to work.

8.      Miss Woodiwiss appealed to the Social Security Appeals Tribunal (SSAT) on 16 May 2002.   At the hearing of the SSAT on 2 July 2002 the original decision was affirmed.   Miss Woodiwiss then lodged an application for review by the Administrative Appeals Tribunal (AAT) on 2 August 2002.

Legal Provisions

9. Section 94 of the Act sets out conditions for qualification for DSP:

Section 94(1) states that a person is qualified 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 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

(d) the person has turned 16; and

(e)the person either  is an Australian resident at the time when the person first satisfies paragraph (c); or …”.

10. Section 94(2) states that 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 … training …such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.”

11. Section 94(3) says “the Secretary is not to have regard to … the availability of training … the availability of work in the locally accessible labour market”.. Sections 94(4), (5), (6) deal with definitions, persons over 55 years and the situation if other pensions or allowances apply.

The SSAT Hearing

12.     At the SSAT hearing conducted in Launceston on 2 August 2002, Miss Woodiwiss was in attendance accompanied by her mother.

13.     Miss Woodiwiss understood that the principal issue under consideration by the Tribunal was the impact hearing deficiencies had on her capacity to work.   She provided a list of “guidelines as to what I can’t do”, explaining that although previously employed by Blue Ribbon Meats for three years, she experienced considerable difficulties not always apparent to others.   While she has some ability to lip-read, this is not uniformly possible, moreover she cannot hear and take phone calls, hear alarm bells and in a classroom has difficulty following the lecturer.

14.     Her initial employment with Blue Ribbon was to fill a two weeks casual vacancy, but she was kept on for three years until the business was placed in receivership and redundancy occurred.   She had undertaken a number of TAFE courses, all of which she passed extremely well.

15.     She has been applying for jobs in a number of fields, but considers she is frequently overlooked because of her deafness.   Some employers are not prepared to engage handicapped people.   She has therefore decided to undertake further academic study and has enrolled for a University degree.   She will apply for Youth Allowance/Austudy to assist financially, but continue to live at home because of the need for family support.

16.     Having considered her evidence and all available reports, the SSAT expressed sympathy with her situation, but noted that she had demonstrated a capacity for full-time work and there were no other intervening factors, other than a recognition that her significant disability might mean few suitable jobs were available.  Overall the Tribunal was satisfied she did not have “a continuing inability to work”, thus failing to qualify for DSP.   The SSAT therefore affirmed the decision under review.

Facts and Contentions

17.     The applicant did not file a statement of facts and contentions with the AAT prior to its hearing.

18. The respondent conceded that the applicant satisfies subsection 94(1) of the Act. She has a severe binaural hearing loss. The respondent further conceded that the applicant satisfies subsection (1)(b), in that she has an impairment rating of 20 points or more. “ … Indeed both Health Services Australia and the SSAT were satisfied that the applicant’s hearing impairment attracted an impairment rating of 35 points”.

19. The respondent further conceded that the applicant satisfies subsection 94(1)(d).

20. The respondent submitted that the applicant fails to satisfy subsection 94(1)(c) of the Act, for a range of reasons set out in its statement, citing both factual and medical evidence to argue that the applicant had demonstrated a capacity for full-time work and therefore did not qualify for a disability support pension. The respondent submitted that the decision of the SSAT dated 2 July 2002 should be affirmed.

The AAT Hearing

21.     At the AAT hearing conducted in Launceston on 7 August 2003, the applicant represented herself with the aid of an interpreter and the respondent (DFCS) was represented by Mr Brian Sparkes.

22.     Anita Woodiwiss was sworn and read a prepared statement, albeit with some difficulty due to lack of diction.   She described the practical problems encountered by a profoundly deaf person in employment and everyday living, such as inability to conduct telephone conversations or service-counter communication, failure to hear warning signals such as alarm bells or approaching vehicles and being in situations where news was always second-hand.   Above all else, her dependence upon lipreading required enormous concentration, was tiring and did not always work.   It was necessary to reside with her relatives, given the level of support needed.

23.     Miss Woodiwiss then went on to describe the difficult employment situation she faced.   While her time at Blue Ribbon Meat had indicated a capacity to undertake clerical work, once she had lost that appointment through redundancy, further job searches had proved unsuccessful; although there was little explicit discrimination, the reality was that few employers were willing take on handicapped persons.    She had therefore sought University enrolment, even though it was problematical whether she could obtain a degree or afterwards find suitable employment.

24.     Under questioning, she indicated an alternative prospect might exist in the field of computing, but there would still be the problem of finding an employer willing to engage her.   It was a depressing situation, but she was determined to try to make her own way in the world.

25.     Ms Lilian Lethberg of Intowork Recruitment and Training was then sworn and gave supporting evidence concerning Anita Woodiwiss’s situation.   She had known Anita since February 1998 and had been actively engaged ever since in trying to find suitable employment for her, but it was a situation where Anita was always going to have to compete with candidates not suffering her substantial disability.   She needed ongoing support in a variety of ways, which must be tailored to individual needs.   It would in Anita’s best interests if she was on a disability support pension, to provide appropriate assistance in her life when required.   Ms Lethberg stated she had worked 18 years in the capacity of nurse, teacher and specialist employment service for individuals with disabilities, she admired Anita Woodiwiss for her spirit of trying to achieve independence and employment in very difficult circumstances.

26.     When questioned about employment prospects for Miss Woodiwiss, Miss Lethberg said there were tasks she could capably perform, but the real problem was to find employers willing to provide opportunities for her.   Thus far this had proven a difficult assignment.

27.     In closing submissions, Miss Woodiwiss indicated she had explained her situation and would rely upon the Tribunal to give it fair consideration.   Counsel for the respondent stated that notwithstanding his sympathy for Anita’s situation, the law was clear that inability to work was the issue to be determined and both her employment record and the available medical evidence indicated she was fit for employment during the next two years.

Analysis

28.     The Tribunal is required to stand in the shoes of the original decision-maker and examine the evidence anew, being bound by statutory provisions and any relevant case authorities.

29. It is conceded by the respondent that Miss Woodiwiss satisfies subsections 94(1)(a),(b) and (d) of the Act, thus the only matter at issue is whether she satisfies subsection 94(1)(c) in the sense of a proven inability to work.

30.     Evidence by the applicant, together with other documentation and reports indicate that she was engaged in full-time employment for a period of approximately three years period to redundancy in mid 2000.   It was this evidence which induced the ARO to decide she was capable of working 30 hours per week in the next two years in a variety of jobs.   Although she has been unable to secure employment since, there is no formal evidence her capacities have decreased and she herself believes she is capable of work if granted an opportunity.   Unfortunately it is her severe disability and the reluctance of employers to recruit handicapped persons, which is the problem.

31.     The medical evidence is also supportive of the conclusion that she remains fit for full-time work.   The medical assessment report of Dr Tabart of Health Services Australia dated 8 March 2002 assessed her impairment rating at 35 points and noted a mild induced asthma and amblyopia (dimness of vision), but nonetheless found her fit for full-time work.

32. The treating doctor’s report of Dr Clezy dated 1 February 2002 does not provide a complete analysis, but provides support for the contention the applicant does not have a continuing inability to work. She therefore fails to meet the criteria specified in subsection 94(1)(c) of the Act.

33. Dr Clezy’s report states that the applicant was in February 2002 able to return to face-to-face study within 6 to 12 months. She has subsequently enrolled for a university degree, although not with great confidence she can complete the course. The principal obstacle to any other course of action appears to be lack of suitable job opportunity, but subsection 94(3)(b) of the Act prevents the Tribunal from dealing with labour market matters.

34.     Given Anita Woodiwiss’s difficult situation, the Tribunal has considered various case authorities to see whether they might offer further guidance.   But most are focussed more upon personal skills and kind of work available, than “continuing inability to work” per se.

35.     In Secretary, Department of Social Security (1998) AATA 63, the Tribunal considered the capacity of a profoundly deaf 17-year old girl who could not lipread, but could communicate using Auslan or writing, and was achieving well in educational terms. The Tribunal held that the phrase “any work” necessarily implied a notion of “suitable work”, rejecting the notion the Department could determine the types of work acceptable to it. An appeal against this decision was allowed by the Federal Court in Secretary, Department of Social Security (1999) 52 ALD 337, but left the issue of “suitable work” unresolved, implying that the phrase “any work”, literally meant “any work”.

36.     In Secretary, Department of Social Security and Pusnjak (1998) 16 ALR 472 the Tribunal placed a significant qualification on the breadth of the expression “any work”, finding that the Secretary is required to have regard to the kind of disability of the applicant and the applicant’s actual work skills and work experience. That is, the Secretary must consider the work the applicant (the impairment apart) is capable of doing, without the need for any retraining (at 16 ALR 579).

37.     In McClelland and Secretary, Department of Family and Community Services (2001) AATA 197, the respondent Robert McClelland’s disability support pension was cancelled when it was discovered he had been working about 30 hours per week, despite a hearing impairment rating of 20 points. It was argued there would be difficulties in retraining him, since an ability to communicate by phone might be required; however the Tribunal found he had proven an ability to work, as demonstrated by employment records in a number of casual jobs, thus his disability support pension should be cancelled.

38.     Unfortunately none of these cases deal with issues directly pertinent to Miss Woodiwiss’s situation, which tends to centre upon the willingness or otherwise of employers to engage handicapped persons.

39. The Tribunal was impressed by Anita Woodiwiss’s endeavour to secure a sound future for herself; however the Tribunal must administer the law as it stands. Having taken all evidence into account the Tribunal finds that Anita Olive Woodiwiss fails to meet criteria specified in s94(1)(c) of the Act, she therefore does not have a continuing inability to work and at the present time does not qualify for a disability support pension (DSP).

Decision

40.     The decision under review is affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  7 August 2003
Date of Decision  August 2003
Counsel for the Applicant         Applicant appeared on own behalf
Solicitor for the Applicant           
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink