YATES and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGNEOUS AFFAIRS

[2011] AATA 691

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 691

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2011/1179

GENERAL ADMINISTRATIVE DIVISION		)
Re		CRAIG YATES

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGNEOUS AFFAIRS

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 6 October 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review.

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Senior Member

CATCHWORDS

FAMILY ASSISTANCE AND SOCIAL SECURITY — disability support pension — continuing inability to work — receiving DSP while retraining — decision affirmed

Social Security Act 1991, s 94

REASONS FOR DECISION

6 October 2011 Senior Member Bernard J McCabe

1.Mr Craig Yates lives with the after-effects of a catastrophic injury in which he lost a leg and sustained other injuries to his lower body. He has also developed post-traumatic stress disorder (PTSD) as a result of what occurred. These problems combine to leave him in a disabled state: the parties accept the applicant is not currently able to work more than about 15 hours per week. Mr Yates says he should be paid the disability support pension (“DSP”) while he retrains himself. He has some ideas about what he wants to do. He says his ultimate objective is to return to the workforce full-time so he can support his family, and he needs access to the DSP in particular to achieve that end. He says Newstart or Austudy will not do because they do not provide adequate support.

2.The Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs is the respondent to this appeal. The Secretary says Mr Yates satisfies some of the requirements that applicants for the DSP meet but he is not able to satisfy all of them. Specifically, the Secretary says Mr Yates could be expected to work more than 15 hours per week within two years of his application (which was received on 24 November 2010) if he was given appropriate assistance.

The evidence

3.

The parties agree Mr Yates suffers significant and debilitating health problems as a result of his accident. He has been doing his best to work notwithstanding those problems: he has his own pressure cleaning business which takes up a lot of his time. The job capacity assessor who reviewed Mr Yates’s case on behalf of the respondent in December 2010 accepted the applicant was working in excess of

15 hours per week at that time but the assessor concluded the applicant’s health was such that he would not be able to continue working those hours without intervention and assistance.

4.The job capacity assessor, Ms Jacob, is a registered psychologist. She gave evidence at the hearing. It was clear from her evidence that she approached the assessment of Mr Yates in a considered way – although she acknowledged that completing the assessment in the limited time available to her was a challenge. She referred to the medical evidence on the file and concluded the applicant would be capable of working around 20 hours per week if he obtained the sort of professional assistance that was available to persons suffering from disabilities – including assistance in identifying appropriate jobs, counselling and other support. Ms Jacob agreed Mr Yates had not actually been referred to any particular service provider at the end of the interview she conducted.

5.Mr Yates tendered a letter from his treating psychologist, Mr Johnson. The opinions expressed in that letter are essentially consistent with the conclusions reached by Ms Jacob. The letter confirms the applicant faces a number of limitations but suggests he could return to the workforce with appropriate assistance and support. The letter assumes that the assistance would come in the form of the DSP, but that is not to the point.

6.Mr Yates agrees he could return to work with appropriate support, but he doubts he could achieve that goal within two years (or within the 14 months that remain of the two year period that commenced when he made his application to Centrelink in November 2010). He also doubts the efficacy of the disability support services referred to by Ms Jacob. He says he has approached a number of service providers, including CRS Australia, who were unable to help him. He says he can help himself if he is given long enough (he wants to study and thinks any course of study may take in excess of 12 months: I note his evidence that he has been accepted into a university program that would run for three years) and if he is given the DSP to keep him going. He says Austudy or Newstart, which are paid at a lower rate, will not allow him to meet his financial obligations while he retrains.

the legislation

7.Section 94 of the Social Security Act 1991 sets out the general eligibility requirements for applicants seeking DSP. It is agreed Mr Yates’s conditions are fully diagnosed, treated and stabilised. That is one requirement. It is also agreed the applicant’s conditions attract at least 20 points on the relevant impairment scale. The dispute is over whether the applicant has a continuing inability to work over the two years that follow the application for DSP – which, in Mr Yates’s case, means the Secretary must be satisfied on the evidence that Mr Yates is unlikely to be able to work at least 15 hours per week within two years if he has access to a program of support and appropriate training.

8.There is no reason to doubt Mr Yates could be back in the workforce for at least 15 hours each week within two years of the date of application if he were to access appropriate training and support. I accept the chances of him reaching that goal within two years are diminishing, now that the better part of a year has elapsed without access to those services. It is unclear whether enough was done to bring those services and the opportunities that might arise to Mr Yates’s attention earlier, but that is not the issue before me. Mr Yates does not really dispute that he could achieve that minimal level of participation if he went along with what was proposed to him at the end of last year. His criticism is that the training and support he would receive and the job he would secure would be unsatisfactory. He says he wants to return to the workforce full-time in a new career, not eke out an existence in an unsatisfactory job that could be arranged by an agency that was anxious to move on and process the next client. He says he can do better if he can get access to DSP.

9.Perhaps Mr Yates is right. He might be able to make a more effective transition to the workplace if he had unrestricted access to DSP. His ambition is certainly admirable. But DSP is not provided to assist in rehabilitation and retraining. It is designed to help disabled people to live in circumstances where they cannot work because of their disability. In other words, it is a form of income support. The legislative scheme contemplates other allowances and mechanisms that are available to assist people to re-train and rehabilitate. Mr Yates made it clear he does not think much of the logic of that arrangement, but the Secretary does not have the luxury of tailoring social security arrangements precisely to fit the needs and circumstances of each individual. The Secretary must apply the legislation as it stands. Once a judgement is made that Mr Yates could return to the workforce with appropriate assistance and training, DSP is no longer an option. The parties should now concentrate their efforts on identifying an appropriate service provider and make an assessment of what other benefits might best suit his circumstances.

Conclusion

10.The decision under review is affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: .....................................................................................
  Associate

Date of Hearing   20 September 2011
Date of Decision   6 October 2011
Applicant   Self-Represented

Solicitor for the Respondent      Mr B Hamilton, Centrelink Program Litigation & Review Branch