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

[2011] AATA 221

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 221

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2161

GENERAL ADMINISTRATIVE DIVISION		)
Re		YCQB

Applicant

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

Respondent

DECISION

Tribunal Senior Member K Bean

Date1 April 2011

PlaceAdelaide

Decision The Tribunal sets aside the decision of the SSAT dated 30 April 2010 and in substitution for that decision decides that the applicant was qualified for Disability Support Pension as at the date he lodged his claim on 4 November 2009.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Whether impairment attracting a rating of 20 points – Whether continuing inability to work – By reason of chronic eczema the applicant has an impairment attracting a rating of 20 points – By reason of his eczema condition he also has a continuing inability to work  – Decision under review set aside.

Social Security Act 1991 s 94

Re Baum and Secretary, Department of Education, Employment and Workplace Relations [2002] AATA 1066
Re Secretary, Department of Social Security and Busstra [1997] AATA 1011

REASONS FOR DECISION

1 April 2011   Senior Member K Bean

introduction

1.      Unfortunately, the applicant in this matter suffers from both chronic asthma and chromic eczema and has done since he was a small child.  On 4 November 2009, he applied for payment of a Disability Support Pension (DSP) on the basis of these conditions and an anxiety/adjustment disorder which was of more recent origin.

2.      The claim was initially rejected, both at first instance and on review by an Authorised Review Officer.  The applicant then sought review of the decision to reject his claim by the Social Security Appeals Tribunal (the SSAT) and on 30 April 2010 the SSAT affirmed the decision under review on the basis that the applicant’s conditions did not fulfil the criteria prescribed by the Social Security Act 1991 (the Act) for payment of DSP.

3.      The applicant has now sought review of that decision by this Tribunal.

legislation and issues

4.      Section 94 of the Act sets out the circumstances in which a person is qualified for DSP and relevantly provides as follows:

“94       Qualification for disability support pension

(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.

(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).

(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)      the availability to the person of a training activity; or

(b)the availability to the person of work in the person’s locally accessible labour market.

(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)      is unlikely to need a program of support that:

(i)is designed to assist the person to prepare for, find or maintain work; and

(ii)is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)is likely to need such a program of support provided occasionally; or

(c)      is likely to need such a program of support that is not ongoing.

(4A)The Secretary must comply with the guidelines (if any) determined and in force under subsection (4B) in deciding the following:

(a)      whether paragraph (1)(b) applies to a person;

(b)whether the Secretary is satisfied as mentioned in subsection (2) or (4).

(4B)The Minister may, by legislative instrument, determine guidelines to be complied with by the Secretary in making a decision referred to in subsection (4A).

(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 15 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.

…”

5.      It follows that the issues for my determination are:

(a)Does the applicant have one or more physical, intellectual or psychiatric impairments?

(b)Does the impairment or do the impairments rate at least 20 points under the Impairment Tables?

(c)Does the applicant have a continuing inability to work because of the impairment/s?

6.      I propose to address each of these issues in turn, having regard to the evidence before me and the contentions of each of the parties.

does the applicant have a physical, intellectual or psychiatric impairment?

7.      The respondent did not dispute and I also accept on the evidence before me that the applicant suffers from the conditions of eczema, asthma and an adjustment disorder.  I am accordingly satisfied that the applicant suffers from those conditions, each of which is an “impairment” within the meaning of s 94.

do the applicant’s impairments rate at least 20 points under the impairment tables?

8.      In relation to this issue, Mr Visser who appeared as an advocate for the respondent, accepted that the applicant’s conditions of eczema and asthma were each permanent within the meaning of the Impairment Tables, as they had each been diagnosed, treated and stabilised and were likely to last for more than two years.  On the evidence before me, I am also satisfied that each of those conditions is permanent and therefore each condition constitutes an impairment which can potentially attract a rating under the Impairment Tables. 

9.      Mr Visser contended that the applicant’s adjustment disorder was not permanent and at the hearing the applicant indicated that he did not rely upon that condition in seeking to qualify for DSP.  As there is no evidence before me in any event that that condition has been fully treated and stabilised and is likely to continue for more than two years, I am not satisfied that it is permanent such that it could potentially attract a rating under the Impairment Tables.  I accordingly propose to restrict my consideration of whether the applicant has an impairment which attracts 20 points to his asthma and eczema conditions. 

Eczema

10.     The appropriate table for assessing the applicant’s eczema condition is Table 18, relating to skin disorders, which relevantly provides as follows:

“TABLE 18     SKIN DISORDERS

In the evaluation of work-related impairment resulting from a skin disorder, the actual functional loss is the prime consideration.  However, where there is extensive cosmetic or cutaneous involvement, this should also be considered.

Rating  Criteria

NILSigns and symptoms of skin disorder present and with treatment there is NO limitation in the performance of normal daily activities.

TENSigns and symptoms of skin disorder present despite optimal treatment and results in some interference with normal daily activities.

TWENTYSigns and symptoms of skin disorder present despite optimal treatment and results in significant interference with normal daily activities.

FORTYVery severe symptoms requiring continuous treatment which may include periodic confinement to home or hospital and needs considerable assistance with normal daily activities.”

11.     Having regard to the table and the assessment of a Job Capacity Assessor made on 27 November 2009, Mr Visser submitted that the impairment rating for the applicant’s eczema was 10 points[1].  In supporting the applicable rating given in that Job Capacity Assessment Report, the assessor, Ms Williams, stated as follows:

“… The client reported that he experiences this condition all over his body, particularly on his limbs.  The client stated that he experiences itchiness and painful irritation.  The client has an increased chance of suffering from infection as a result of flaky and broken skin exposing areas for infection to get in.  The client also has psychological impacts from this condition relating to his self esteem. …”[2]

[1] T10/117

[2] T10/117

12.     This description was broadly consistent with the applicant’s oral evidence.  However some of the details the applicant supplied in his oral evidence suggested that Ms Williams may not have considered all aspects of the condition and its impact upon the applicant. 

13.     The applicant explained in his oral evidence that he had recently had to attend the Royal Adelaide Hospital for treatment for his eczema and that the condition was so severe that it required him to have three or four showers per day in order to keep his skin as moist as possible.  He explained that if he did not shower, his skin would tear and bleed.  He said both the warmth of the shower and the ointment which he applied afterwards helped his condition.  He also explained that his ankles and wrists were affected most severely and that this meant walking was difficult all of the time and he was constantly experiencing a severe and chronic level of discomfort.  He said that the condition caused his sleep to be light and disjointed due discomfort and itchiness which lead him to him being tired most of the time during the day.

14.     In support of his contention that his eczema condition attracted a higher rating under Table 18, the applicant also relied upon the evidence of his treating general practitioner, Dr Watson.  Dr Watson has provided a report in relation to the applicant’s conditions and he also gave brief oral evidence at the hearing.

15.     In his report to Centrelink dated 27 July 2010, Dr Watson stated in relation to the applicant’s eczema condition:

“I confirm that he has severe eczema persisting all year round despite compliance with prescribed medications.  On referring to Table 18 Skin Disorders rating criteria he scores a consistent thirty. …”[3]

[3] Exhibit 4

16.     In his oral evidence however, Dr Watson indicated that he now considered that the applicant’s eczema attracted a rating of 40 under Table 18.  He also accepted that the relevant table did not in fact provide for a rating of 30, but indicated that in any case he now considered the appropriate rating to be 40.  It was clear from his evidence that he considered the applicant certainly attracted a rating of at least 20, having regard to the severity of his condition and its impact upon him.

17.     Whilst I have taken into account Ms Williams’ opinion that when she carried out her assessment the applicant’s eczema condition attracted a rating of 10, I consider that his treating general practitioner has greater knowledge of his condition, as well as greater medical expertise.  I therefore prefer his assessment, which I also consider to be more consistent with the applicant’s oral evidence, which I also accept.

18.     Having regard to Dr Watson’s report of 27 July 2010, and the fact there is nothing before me to suggest that the applicant’s eczema condition deteriorated significantly between the time he lodged his claim for DSP and the date of that report, I am accordingly satisfied that at the time he lodged his claim on 4 November 2009, the applicant’s eczema condition attracted a rating of at least 20 points. 

19.     It follows that the applicant has a physical impairment which attracts 20 points or more under the Impairment Tables for the purposes of s 94(1) and it is unnecessary for me to further consider his asthma condition in this context.

does the applicant have a continuing inability to work because of the impairment?

20.     I note that in order for a person to be considered to have a continuing inability to work for the purposes of s 94(2), their impairment must be sufficient to prevent the person from doing any work independently of a program of support within the next two years and also be sufficient to prevent the person from undertaking a training activity likely to result in independent work, within the next two years.  “Work” is defined in this context to include work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage. 

21.     In relation to this issue, Mr Visser relied upon a number of Job Capacity Assessor reports, which he contended had consistently indicated that the applicant had capacity to work at least 15 hours per week or would have within a two year period.  He also relied upon the decision of Deputy President Forgie in Re Baum and Secretary, Department of Education, Employment and Workplace Relations [2002] AATA 1066 to support the proposition that a Job Capacity Assessor’s opinion was highly relevant to answering the questions posed by s 94(2)(a).

22.     Mr Visser placed particular reliance upon the assessment of Ms Sonia Rubessa, a registered occupational therapist who carried out an assessment on 11 May 2010[4], and also gave oral evidence at the hearing. 

[4] Exhibit 8

23.     In relation to the applicant’s capacity to work by reference to his eczema condition, Ms Rubessa relevantly stated in her report:

“…

A phone call was made to Dr Watson, [the applicant’s] general practitioner, to seek clarification of the condition’s severity and impact on work capacity.  Dr Watson confirmed the condition has episodic exacerbations that are severe and debilitating that would require extended periods of time off work.  However, he also felt that [the applicant] could sustain at least 15 hours per week in suitable office based employment, although the employer would need to be understanding and flexible around his leave arrangements for his treatment.  The functional impact of this condition presents during episodes of exacerbation whereby the symptoms impact on the client’s capacity to concentrate and complete tasks and likely to have periods of time off work resulting in reliability issues to attend for employment. …”

24.     Under cross-examination however, it was put to Ms Rubessa that at the time she completed her assessment, Centrelink had a medical certificate from Dr Watson indicating that the applicant would be unfit for work from 23 March 2010 to 23 June 2010.  Ms Rubessa indicated that although she was aware of this, she had assumed that this certificate related to a particular exacerbation of the applicant’s eczema condition. 

25.     In this regard, the applicant pointed out that medical certificates from Dr Watson had been provided to Centrelink which certified him as being incapacitated for work or study continuously from 3 March 2009 to 22 September 2010[5].  In other words, at the time Ms Rubessa carried out her assessment, the applicant had been completely incapacitated for work or study for the previous 14 months, and was expected to remain so incapacitated for at least the next 6 weeks.  Whilst she was aware of the certificate which was current at the time of her assessment, Ms Rubessa said she did not recall having the other medical certificates which had been provided to Centrelink at the time of her assessment.

[5] Exhibit 2

26.     In his evidence relating to this issue the applicant stated that he had last worked, in the information technology industry, in August 2008.  He said he had ceased work because the company he was working for had moved overseas, but he had also been struggling with his duties.  It was put to him that he could do a similar job now for 15 hours per week, but he disputed this and said he had not tried undertaking home-based work or study as he did not have a computer at home.  He acknowledged that he lived alone and was able to care for his 2 year old son whilst his son was staying with him, which was approximately half the time.  He also acknowledged that he was largely able to care for himself and carry out household chores, although he said that he does obtain some assistance from his mother.

27.     Dr Watson also gave oral evidence in relation to this issue.  He stated that although he had been more optimistic previously, he now considered it was clear that the applicant’s work capacity would not improve and he continued to have no capacity for work or training.  He also indicated in his evidence that during the period from November 2009 to the date of the hearing, he considered the applicant’s incapacity to be attributable to his eczema condition[6]. 

[6] Transcript, 7.12.10, pp 2-3.

28.     Having regard to this evidence, on balance, I am satisfied that, in retrospect, the applicant had a continuing inability to work by reason of his eczema condition on 4 November 2009.  In fact, on the evidence before me it appears that his inability to undertake work or training commenced on 3 March 2009 and has continued since then and is unlikely to change.

29.     In reaching that conclusion I have placed particular reliance on the opinion of Dr Watson, who has been the applicant’s treating general practitioner since March 2009[7] and has a detailed knowledge of the applicant’s eczema condition and its impact upon the applicant.  I have also had regard to the fact that Ms Rubessa does not appear to have been aware at the time she carried out her assessment that the applicant had been certified unfit for work or study continuously since March 2009 to the date of her assessment.  I have also had regard to the heavily qualified nature of her assessment, in which she acknowledged that in order to work the applicant would need an extremely flexible employer and may require extensive periods of time off work.  I have also had regard to the fact that in making her assessment she relied heavily on the opinion of Dr Watson, and Dr Watson has now stated that the applicant’s incapacity has persisted since 3 March 2009 and that in his opinion his level of incapacity is now unlikely to change.  Further the applicant’s evidence was in my view consistent with the opinions expressed by Dr Watson and the reasons he gave for them.

[7] T9/113

conclusion

30.     It follows that I have concluded that the applicant was qualified to receive DSP on the date he lodged his claim on 4 November 2009.

decision

31.     I have accordingly decided to set aside the decision of the SSAT dated 30 April 2010 and in its place substitute a decision that the applicant was qualified for DSP as at the date he lodged his claim on 4 November 2009.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         .............J Coulthard.........................................
  Associate

Date of Hearing  7 December 2010
Date of Decision  1 April 2011
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr C Visser

Centrelink Advocacy Branch