King and Department of Family and Community Services [1999] AATA 55 (3 February 1999)

Last Updated: 11 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 55

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o N1998/1649

GENERAL ADMINISTRATIVE DIVISION )

Re TREVOR KING

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 3 February 1999

Place Sydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely THAT:

the Applicant, Trevor King, is entitled to be paid Disability Support Pension pursuant to section 94 of the Social Security Act 1991 (as amended).

(Sgd) M D ALLEN

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

Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension. Payment of Disability Support Pension terminated. Whether Applicant had a continuing inability to work. Onus of showing Applicant no longer unable to work upon Respondent Department.

Social Security Act 1991 - s.94

McDonald v Director-General of Social Security 1 FCR 354

REASONS FOR DECISION

3 February 1999 Senior Member M D Allen

1. By application lodged 16 November 1998, the Applicant sought review of a decision by a delegate of the Respondent made 16 June 1998, and affirmed by a Social Security Appeals Tribunal on 4 November 1998, cancelling the payment of Disability Support Pension.

2. The said application for review came on for hearing before me at Tamworth on 22 January 1999. At that review the Applicant was unrepresented and there was taken in as exhibits the following documents, namely:

T1 to T17 : the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975; and

Exhibit A1 : the report of Dr R A Findlay dated 4 January 1998 (sic)

3. The criteria for the grant of a Disability Support Pension are set out in section 94 of the Social Security Act 1991 (as amended). The relevant provisions read:

"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;

...

(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 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 the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years."

"Work" is defined in ss.94(5) as meaning work

"(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market."

4. The Applicant's background has been set out in the report by Mr Lucas, Psychologist, which is Document T10. The salient facts of that report were confirmed in evidence by the Applicant and I find:

(i) the Applicant was born at Inverell on 14 August 1951;

(ii) he was educated to 6th class level at the Gum Tree Flat Primary School and left school at about age 16 or 17. He is functionally illiterate and innumerate;

(iii) initially the Applicant was employed cutting scrub with his father, he then obtained a labouring job with the Inverell Abattoirs. After eight or nine years he left the Abattoirs, due to a slow down in work, and undertook some employment, tobacco picking. He then found employment with the Inverell Shire Council as a labourer with a curb and guttering gang. He was forced to leave this job as his back condition was developing and he was unable to lift weights; and

(iv) the Applicant ceased work in 1984, on medical advice, due to back pain. On 17 October 1985 he was granted an Invalid Pension (now Disability Support Pension) and has remained on that pension until the Respondent's delegate ceased payment by the decision of 16 June 1998.

5. On 28 October 1997, the Applicant's treating medical practitioner, Dr Findlay, prepared a report. In that report he stated inter alia that the Applicant's condition was long term, in that it was likely to persist for at least two years and that the Applicant was not likely to benefit from vocational training or rehabilitation as he did not have the mentality for learning.

6. The Applicant was examined by a Commonwealth Medical Officer on 10 February 1998. It was, however, conceded by the Respondent in these proceedings that the Applicant did have an impairment of 20 points, hence the provisions of paragraphs 94(1)(a) and (b) of the Social Security Act 1991 were met. The question in this matter is, therefore, as to whether the Applicant has a "continuing inability to work" as that term is defined in ss.94(2).

7. Unfortunately, in determining whether a continuing inability to work exists, the Social Security Act has introduced two totally artificial concepts which operate detrimentally to persons in the position of the present applicant. Subsection 94(3) of the Social Security Act 1991 states:

"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 educational or vocational training or on-the-job training; or

(b) if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market."

Of course, what this subsection means is that there is no necessity for the Respondent to point to any particular course available to the Applicant, or even the existence of such a course, and the fact that the Applicant has spent all his life in rural areas, mainly in and around Inverell in the North West of New South Wales, is immaterial. In the Applicant's case, it is apparent to anyone who knows rural conditions that the Applicant, as an illiterate and innumerate labourer, will find it next to impossible to get so-called "light" work but this is to be ignored.

8. In his report of 10 February 1998 (T7), the Commonwealth Medical Officer states:

"I contacted his local doctor who agreed that Mr. King is medically fit to do light work that avoids heavy lifting and repetitive bending."

This contrasts with Exhibit A1, the report from the Applicant's general practitioner dated 4 January 1998 (sic), which states:

"Mr Trevor King is illiterate and innumerate. He complains of backache and would not be able to work for 30 H a week."

9. Mr Lucas' psychological assessment concludes by stating (T10 p52):

"In view of all the information, there is little doubt that Mr King is significantly disadvantaged within the competitive employment market in view of his lack of education and training and recent employment experience, and particularly given the restrictions posed by his reported back condition, and the fact that his underdeveloped literacy and numeracy skills compromise him in terms of acquiring the skills for more sedentary employment which may be more compatible with the maintenance of a healthy back condition. Currently, his underdeveloped literacy and numeracy skills severely restrict him with regard to the type of sedentary work he could perform."

And he concluded by stating:

"It would be difficult to be definitive regarding the number of hours Mr King could, potentially, work on a weekly basis, because this would depend upon his back condition. Any prediction is also complicated by the fact that his last employment experience was over fifteen years ago."

10. In further discussing employment which might be open to the Applicant, Mr Lucas stated (T10 p52):

"Ideally, however, the work would involve benchwork, including, small parts assembly, repair and maintenance, without any lifting at all, and, with the opportunity to be able to stand and sit to relieve the pain build-ups. It would also be necessary for the position not to have any reading or numeracy requirements, and that any instruction should be provided in a hands-on fashion with opportunity to learn through repetition."

11. In his report Mr Lucas also points out that the Applicant has had motorcycle accidents and states (T10 p51):

"The information suggests that these deficits have been present from a very early age and significantly impacted upon him in relation to his experiences at the Gum Flat Primary School. There is a possibility that the deficits may have been further exacerbated by the head impacts he suffered in the motorcycle accidents.

The information would further suggest that no further improvements in his literacy and numeracy skill development could be expected even with the most intensive of tuition, ..."

12. As pointed out above, the Applicant has been in receipt of a Disability Support Pension (or its precursor) since 1985 and, as Mr Lucas has indicated, time out of the workforce would mitigate against his ability to now undertake employment. But that fact also means that the status quo was that the Applicant was in receipt of Disability Support Pension until the Respondent's delegate determined otherwise. As was stated by Woodward J (with whom Jenkinson J agreed) in McDonald v Director-General of Social Security 1 FCR 354 at 358, 359:

"If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work. For a comparable analysis as to the onus of proof (properly so-called) before a judicial tribunal see Phillips v. The Commonwealth (1964) 110 C.L.R. 347 at 350.

The present case falls within the former category - there was some evidence of improvement in the applicant's medical condition - and the Director-General purported to act under s.46(1) of the Act. Therefore a state of indecision of the AAT (if it had existed) should have been resolved in the applicant's favour. ..."

13. In this matter, given the Applicant's physical and intellectual impairments, I am not satisfied that the Applicant no longer has a continuing inability to work. Given the reports of the Commonwealth Medical Officer and Mr Lucas, I am not satisfied even "light" work would be able to be performed to the level of 30 hours a week. Any educational, or vocational training or on-the-job training would be vitiated by his lack of intellect, illiteracy and innumeracy. Similarly, I am not persuaded that his back condition would permit him to undertake training. Even if he were able to undertake such training, there is no material before me which indicates that it would enable the Applicant to do any work within the next two years, as required by paragraph 94(2)(b)(ii).

14. The decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant, Trevor King, is entitled to be paid Disability Support Pension.

I certify that this and the 6 preceding pages are a true copy of the decision and reasons for decision herein of

Senior Member M D Allen

Signed: Ian Taylor .....................................................................................

Associate

Date/s of Hearing 22 January 1999

Date of Decision 3 February 1999

Solicitor for the Applicant N/A - Applicant self-represented

Solicitor for the Respondent Mr G Lozynsky, Centrelink