Street and Secretary, Department of Family and Community Services [2000] AATA 105 (16 February 2000)

Last Updated: 17 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 105

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/1012

GENERAL ADMINISTRATIVE DIVISION )

Re KENNETH SIDNEY STREET

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date 16 February 2000

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP Breen

PRESIDENTIAL MEMBER

CATCHWORDS

SOCIAL SECURITY - disability support pension - wife's pension - cancellation whether degree of impairment was 20 points - thoraco-lumbar spine impairment - chronic obstructive airways disease.

REASONS FOR DECISION

16 February 2000 Deputy President DP Breen, Presidential Member

1. This is a review of a decision by a delegate of the Secretary to the Department of Family and Community Services on 9 April 1998, which was affirmed by the Social Security Appeals Tribunal on 16 September 1998, to cancel the applicant's disability support pension and as a consequence to also cancel the pension of the applicant's wife.

2. Mr Street lodged his application on 16 October 1998 and the matter was heard in Toowoomba, first on 16 December 1999 and continued on 11 February 2000. The applicant was represented by his daughter, Mrs A Tester, and the respondent was represented by Mr P Kanowski, a Departmental Advocate.

3. The following documents were made exhibits before the Tribunal.

* Exhibit 1 "T" Documents

* Exhibit 1A Supplementary "T" Documents

* Exhibit 2 Report of Dr Peter J Nolan dated 27.7.99

* Exhibit 3 Report of Dr Peter J Nolan dated 9.9.99

* Exhibit 4 Report of Dr GW Hudson dated 14.9.99

* Exhibit 5 Report of Dr GW Hudson dated 12.10.99

* Exhibit 6 Report of Dr S Yang dated 15.12.99 with attachments - Dr

Yang's letter to Dr Nolan and his response

4. According to the "T" Documents, the applicant is a 52 year old man who lives with his wife and six foster children on a small farm at Grantham. He suffers from coal dust asthma which he contracted 13 years ago whilst working on the coalfields. This condition results in continual coughing and leaves him short of breath. He is undergoing extensive treatment for this complaint. The applicant also suffers low back pain as a result of falling off a bulldozer on to rocks 18 years ago. He can only sit comfortably for around 30 minutes and can only walk on flat surfaces for short distances. The applicant has only been trained as a manual labourer and cannot read or write. Mrs Street had received a wife's pension in the past, on the basis of the applicant's disability.

5. Qualification requirements for disability support pension are set out in Section 94 of the Social Security Act 1991 ("the Act").

"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) because of the impairment the person has a continuing inability to work; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

(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 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."

6. Section 147 of the Act sets out the qualification requirements for a wife pension. It reads as follows:

"(1) A woman is qualified for a wife pension if the woman:

(a) is a member of a couple; and

(b) has a partner who:

(i) is receiving an age pension, disability support pension or disability wage supplement; or

(ii) is receiving a rehabilitation allowance and was, immediately before he became qualified for that allowance, receiving an invalid pension."

7. The Social Security Appeals Tribunal found that Mr Street's respiratory illness attracted a rating of 15 points under Table 1 of the Impairment Tables but his back injury attracted a rating of nil points under Table 5.2 on the basis that he has normal or near-normal range of movement in his thoraco-lumbar spine. This meant that his impairment was below the required 20 points, according to the Social Security Appeals Tribunal. Those findings relating to the respiratory illness were based on medical reports by Dr Hudson in December 1997 which gave the applicant a FEV1 of 4.3 litres and a forced vital capacity of 5.3 litres (Document T14 Folio 77).

8. Dr Nolan gave evidence before the Tribunal. He had examined the applicant on 6 July 1999, 27 July 1999, 7 September 1999 and again on 16 November 1999. In September he reported a forced expiratory volume in one-second (FEV1) of 39% of the predicted value and a forced vital capacity of 45% of the predicted value (Exhibit 13). These figures are significantly poorer than in Dr Hudson's report in December 1997, indicating a fairly rapid increase in the severity of the applicant's condition in what is a relatively short period of time. It should be recorded that, when asked by the Tribunal whether the applicant's illness could worsen at such a rate, Dr Nolan answered that it was highly possible.

9. Dr Nolan found that he could not interpret the figures given by Dr Hudson in his 1997 report. He did, however, concede that the applicant's responses to these tests varied from day to day and even within a visit. Further, Dr Nolan stated that although the applicant suffered an intrinsic level of fixed airways disease, he also suffered a significant level of variable airways disease. As such, the applicant's level of variable airway disease could have increased markedly in the 18 months since the decision by the Social Security Appeals Tribunal and in the 22 months since Dr Hudson's report.

10. Finally, Dr Nolan recommended that the applicant would not be able to undertake any manual work but might, however, be suited to light non-manual sedentary work in a clean and supportive environment where he could continue to undertake therapy for his asthma. This was provided the applicant received suitable re-training.

11. Mr Kanowski indicated to me during the course of the hearing that in July last year the applicant had lodged a fresh claim for disability support pension. I assume his wife would, if it is granted, also be entitled to the wife's pension.

12. Mr Kanowski also informed me that since the making of the decision under review, which as a plank of its ratio acknowledged a determination of no incapacity attributable to the lower back pain, the fresh determination in respect of that condition in the thoraco-lumbar spine attributed an impairment of 5 percentage points.

13. There is, in my mind on the evidence of Dr Nolan, which I accepted as reliable and authoritative, no doubt whatsoever that the applicant is presently to be assessed on the impairment tables as being rated at 20 points under the relevant table for the condition of chronic obstructive airways disease alone. It follows that his entitlement to the disability support pension is thereby established. It is a statutory consequence that his wife's entitlement to the wife's pension is also re-invested in her. In making that assessment of entitlement the finding at the primary decision-making level that his condition of thoraco-lumbar spine impairment attracts 5 impairment points, reinforces my conclusion that he is presently entitled.

14. My decision, however, is one to be made on review of the decision under review. It is to be made not on the basis of Dr Nolan's assessment of the applicant's present condition, but on the basis of the evidence available at the time of the making of the decision under review. On the evidence then available, I find the medical reports and assessment of Dr Hudson to be the most persuasive. They are presented in the "T" Documents. They support, as being correct at that time, the decision under review. Accordingly, the Tribunal's determination is that the decision will be affirmed.

15. However, the matter is remitted to the respondent for determination of the fresh claim of entitlement lodged by the applicant in July 1999 in accordance with the Tribunal's assessment and finding that that claim should be allowed. If it is not, it is the Tribunal's recommendation to the applicant that he pursue again the appeal processes available to him.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed: Emma Oettinger

Associate

Date/s of Hearing 16.12.99, 11.2.00

Date of Decision 16.2.00

Counsel for the Applicant

Representative for Applicant Mrs A Tester, daughter of applicant

Counsel for the Respondent

Solicitor for the Respondent Mr P Kanowski, Departmental Advocate.