Newton and Department of Family and Community Services [2000] AATA 349 (4 May 2000)

Last Updated: 25 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1423

GENERAL APPEALS DIVISION )

Re Virginia Mary NEWTON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date 4 May 2000

Place Melbourne

Decision The Tribunal affirms the decision under review.

(Sgnd) Joan Dwyer

Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - whether applicant has a physical, intellectual or psychiatric impairment - whether impairment is of 20% or more under the Impairment Tables - whether "continuing inability to work" - decision affirmed

PRACTICE AND PROCEDURE - need for an identifiable original decision - need for proper documentation of procedural steps within Centrelink

Social Security Act 1991 s.94

REASONS FOR DECISION

4 May 2000 Mrs Joan Dwyer Senior Member

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("SSAT") made 13 October 1999 (T2) which affirmed a decision that had been affirmed by an authorised review officer on 28 July 1999, to reject Ms Newton's claim for disability support pension ("DSP"). There are procedural problems with this matter to which I will return after dealing with the substantive issue for determination, namely whether Ms Newton is qualified for DSP.

2. The Tribunal received in evidence the documents ("the T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 together with the exhibits tendered by Ms Newton. Ms Newton gave evidence as did Ms Williamson who is an Employment Consultant with Midland Personnel.

qualification for disability support pension

3. Sub-section 94(1) of the Act states that to be qualified for disability support pension a person must have a physical, intellectual or psychiatric impairment of 20% or more under the Impairment Tables, and must have a continuing inability to work because of the impairment. It provides:

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;

. . .

4. The concept of a "continuing inability to work" is explained in s 94(2), (3) and (5) of the Act, which read as follows:

94(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.

94(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 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.

. . .

94(5) In this section:

...

"work" means 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.

5. Ms Newton in her claim form (T3), and in her statement (T22), and in her letter of complaint about Dr Schenk (T9), and in her appeal letter (T19), gave considerable information about her various complaints. They are also set out in a letter from a treating general practitioner (A1).

(i) impairment

6. In her evidence at the hearing Ms Newton described her conditions as follows:

1. Central Chest Pain: Ms Newton said this occurs if she attempts to lift anything even mildly heavy. She gave as an example attempting to move a suitcase on top of a cupboard. She said the suitcase was not empty but neither was it full. She said she has learnt to avoid this pain by not doing anything likely to bring on an episode.

2. Left sided chest pain: Ms Newton said she had this pain all her life. She remembers getting it when she was only four years old. She said it is severe and may last anything from a few minutes to a week. It can come on at any time of the day or night and can make turning over in bed difficult. When she has an attack it restricts her breathing and she has to stop whatever she is doing. Dr Luscombe in his report (A1) described this pain as pleuritic in nature. He also wrote that Ms Newton has had a normal chest X-ray and echocardiogram. Ms Newton claimed that she had a mitral valve prolapse. I explained to her that the report of Dr Zimmet, her cardiologist, (A8) indicated that Ms Newton had been investigated for a suspected Mitral Valve Prolapse, but the investigations had not confirmed that diagnosis.

3. Back pain: Back pain was not a problem until Ms Newton suffered an acute lumbar disc derangement for which she saw Dr Luscombe on 10 May 1999. Mr Baker submitted that the Tribunal could not take back pain into account because of s 100(3) of the Act. That sub-section allows the Tribunal to take into account matters which qualify a person for DSP within three months of the date of lodging a claim. By implication matters which only occur after that date can not be considered. However Ms Newton said that since having physiotherapy treatment the condition is much improved, although she still has some lower back pain for instance if she carries heavy things (which she does not do because of her problem with central chest pain) or when sitting or standing for long periods. Dr Luscombe wrote that Ms Newton has had a normal lumbar spine X-ray. The report states that all features are normal "apart from minor mid osteophytes" (T13).

4. Severe Travel or Motion Sickness: Ms Newton said that she avoids travel where possible as travel can make her feel dizzy and nauseous. Although Dr Luscombe wrote that this was "refracting [sic] to therapy', Ms Newton said that she has had no therapy for the condition. She said she does not like the idea of taking tablets. She said she was not aware of other therapy such as travel bands which are worn on the wrist. Ms Newton said travel sickness is a family problem. She has had it all her life. Her mother and grandfather also suffered from travel sickness.

5. Sinusitis: Ms Newton said that she has had bad sinusitis since childhood. She said she has to breathe through her mouth. Ms Newton believes this allows more germs to enter her body. The sinusitis is apparently due to a deviated septum (T8 p57). The sinusitis causes severe headaches most days. Ms Newton has been told the headaches could be due to temporomandibular joint dysfunction, but she thinks they are related to the sinusitis. It also sometimes makes her vision appear blurred and makes her feel lethargic and tired.

(ii) impairment ratings

7. Mr Baker conceded that Ms Newton has an impairment in respect of her chest pain and that she is entitled to a rating of 5 on Table 21 of the Impairment Tables in Schedule 1B of the Act. Dr Luscombe said he would accord Ms Newton a rating of 20 points in respect of all her conditions on Table 20. Dr Schenk (T8), and Dr Paulson (T23), gave her nil ratings in respect of all conditions. Dr Harries (T16), on the material, agreed with Dr Schenk and Dr Paulson.

8. There is an unusual discrepancy between the doctors. The position is partly explained by the psychologist Dr Jeavons who wrote (T24 p104):

It is difficult to explain the degree to which Ms Newton appears disabled by the chronic physical conditions from which she claims to suffer. Her physical appearance was of a perfectly healthy woman, looking possibly younger than her age. Her lifestyle certainly is not typical of someone of her age and she is quite focussed on her health concerns, but was at pains to point out that they are genuine and she was frustrated by the fact that the medical profession had failed to diagnose and treat her conditions.

9. The impression Ms Newton gave was, as Dr Jeavons wrote, of somebody who is "quite focussed on her health concerns". She is not keen to undertake surgical treatment which could alleviate her problems. Two Ear Nose and Throat Specialists, Mr Joshi and Dr Havea, have suggested that Ms Newton should undergo surgery for a deviated septum. She seems not to be inclined to undergo this surgery.

10. The introduction to the Impairment Tables provides that for a rating to be assigned, the condition must be a fully documented diagnosed condition which has been investigated, treated and stabilised. Paragraphs 3, 4, 5 and 6 provide as follows:

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

* what treatment or rehabilitation has occurred;

* whether treatment is still continuing or is planned in the near future;

* whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

* treatment that is feasible and accessible ie, available locally at a reasonable cost;

* where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

* evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

* indicate why this treatment is reasonable; and

* note the reasons why the person has chosen not to have treatment.

11. Mr Joshi, in a letter dated 16 December 1998 wrote to Dr Dale (T11 p66):

Many thanks for asking me to review this patient.

She complained of earache on both sides. She is awaiting endoscopic sinus surgery and a septoplasty at Bendigo Hospital for a deflected nasal septum.

On examination, her ear canals and ear drums appeared normal. She had low grade chronic tonsillitis. Her nasal mucosa was clear. Sinuses were vaguely tender. Audiometry showed close to normal hearing in both ears in all frequencies. Tympanometry was normal as well.

I have reassured her that her earaches are referred pain, likely to be from the nose, sinuses and tonsils.

I have prescribed Miss Newton a short course of Augmentin.

I would proceed with the endoscopic sinus surgery and septoplasty when the Bendigo Hospital notifies her.

12. The SSAT had before it reports of Mr Joshi recommending endoscopic sinus surgery and septoplasty. Ms Newton, according to the reasons for decision of the SSAT, told that Tribunal that another ear, nose and throat surgeon had also recommended the surgery and that she would go ahead with it. She said that she was on a waiting list for the recommended surgery. The SSAT therefore decided that the sinusitis condition was not stabilised and did not attract a rating.

13. Ms Newton in her application for review of the SSAT decision wrote (T1 p3):

The Tribunal in it's summary have assumed that I will be going ahead with surgery on my nose and have therefore not bothered to consider the long-term impact that my sinus symptoms have on my everyday life. I informed the Tribunal that I had been put on a waiting list for surgery by Mr Joshi (an Ear, Nose & Throat specialist) however after contacting his surgery and also getting a second opinion from another Ear, Nose & Throat specialist Mr Havea, both confirmed that if I went ahead with surgery my sinus related problems would still remain and often they become worse after surgery so was advised not to proceed.

14. In a telephone directions hearing prior to this hearing, I suggested to Ms Newton that she should obtain reports from the Ear, Nose and Throat surgeons to which she referred, confirming that they had advised her not to proceed with the surgery.

15. Ms Newton lodged reports from Mr Joshi dated 15 March 2000 (A2) and from Mr Havea dated 29 March 1999 (A5). Mr Joshi wrote:

Thank you for your letter re your sinusitis problem.

I am able to confirm that you have chronic rhinosinusitis and tonsillitis. You have been advised to have surgery on the nose to straighten up the septum, however, with a long history of sinusitis, it is likely that you will continue to have some amount of sinusitis problem, post-operatively as well.

Mr Havea wrote:

Thank you for referring this 30 year old lass for a second opinion. She indeed needs to have septoplasty and trimming of inferior turbinates to access the nasal cavities adequately. For the time being it is probably best not to do any operation on the sinuses. She has bilateral temporo mandibular joint dysfunction and should improve with jaw exercises. I have also started her on Rhinocort nasal spray. I will check her progress in 4 weeks time. I will keep you posted.

16. Although Mr Joshi did confirm that it is likely that Ms Newton will have "some amount of sinusitis problem, post-operatively", he did say that she had been advised to undergo the surgery to straighten the septum. Mr Havea said Ms Newton "needs" to have the surgery. Neither of the specialists wrote that Ms Newton had been advised "not to proceed." Ms Newton's evidence at the hearing, at first, was that she did not intend to undergo the surgery. Later she said that she was still on the waiting list and would decide whether or not to undergo it when she was offered the surgery.

17. On the basis of that evidence I find that the sinusitis condition has not been treated and stabilised and therefore does not attract a rating on the impairment Tables. While Ms Newton may have "some amount of sinusitis problem, post operatively", the extent to which that problem would create an impairment for work cannot be known until the surgery has taken place.

18. The travel or motion sickness is in a similar situation. Ms Newton said she has had no treatment for the condition. Thus it is hard to understand the reference by Dr Luscombe to it being "refracting [sic] to therapy." It is a condition Ms Newton has had all her life and for which she has not had treatment.

19. The chest pains of both types have been investigated, but no diagnosis has been made. The central chest pain can on the whole be avoided by Ms Newton not attempting even moderately heavy lifting. Thus it does not give rise to an impairment rating on Table 20 or 21.

20. The left sided chest pain, which Ms Newton says she has had since she was a four year old child, apparently interfered only minimally with her schooling. She gave evidence that she had a few days off during her school years but nothing significant. I find it difficult to understand why that pain should therefore be regarded by Ms Newton and Ms Williamson as interfering with Ms Newton's ability to work. Dr Luscombe described the pain as "pleuritic in nature". Ms Newton seemed to suggest it may be related to pleurisy she suffered in April 1996 (A7). That would not explain the attacks since Ms Newton was four years old.

21. There is a question whether the condition has been sufficiently investigated to be given a rating. Certainly it has been investigated by the cardiologist, Dr Zimmett. As the respondent has conceded that it is an impairment, I will proceed on that basis. Bearing in mind that the symptoms may not come for weeks at a time and may last no more than a few minutes, it seems to me that the best description is that attracting a rating of 10 in Table 20. That Table provides:

TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating Criteria

NIL Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

22. The SSAT had given a rating of 5 on Table 21 for symptoms of prolonged duration occurring in 20+ days a year. Mr Baker accepted that rating. Apparently the description of duration of the symptoms given by Ms Newton to the SSAT was somewhat different from that given to me.

23. I note that Dr Schenk and Dr Paulson gave no impairment rating for chest pain. Mr Baker did not ask me to adopt their opinions on this issue. I consider a rating of 10 on Table 20 is appropriate.

24. Ms Newton's lumbar back condition has been treated with physiotherapy. She is left with a back which becomes painful if she stands too long or if she would attempt to carry heavy loads, which she does not do anyway. That does not attract any rating on Table 5.

25. Thus I find that Ms Newton only attracts a rating of 10 impairment points on Table 20. She is therefore not qualified for DSP and the decision under review must be affirmed.

(iii) continuing inability to work

26. There are however some comments I consider it appropriate to make as to the issue of "a continuing inability to work" under s 94(1)(c) of the Act. That concept is further explained in s 94(2). The evidence did not satisfy me that Ms Newton has a continuing inability to work either due to the impairment as rated on the Tables or even due to impairment from all her conditions. She was unable to explain why, after she had become unwell after working in her first job in Melbourne for about nine months and had returned to Castlemaine, she had never again attempted to find employment.

27. All Ms Newton's conditions, except the back pain, which would not restrict her ability to engage in light work, such as clerical duties or sales, have been with her since childhood. The evidence is that she attended school without any unusual absences due to health problems. There was no evidence as to why she could not have returned to work after leaving her first job when she was seventeen, or why she could not work currently possibly with some restrictions on the type of work, namely clerical or light duties work, and perhaps with some absences due to ill-health.

28. I was extremely puzzled by Ms Williamson's evidence. She said that she is an employment consultant at Midland Personnel which is an employment support and placement agency specifically for people with a disability rating of 51 points or more on the "WAIR" Scale. When I asked why no placement or even work trial or part-time work had been arranged for Ms Newton, Ms Williamson said she and her manager felt that because of Ms Newton's disabilities that was not considered appropriate. When I asked whether consideration had been given to arranging for Ms Newton to have some motivational counselling or some work conditioning, perhaps with a voluntary part-time placement, Ms Williamson said Midland Personnel did not have access to such services.

29. There seems again to be considerable discrepancy between the views of Ms Williamson and of Ms Newton and her treating doctors on the one hand, and the CMO's on the other hand as to the effects of Ms Newton's conditions on her ability to work.

30. Dr Reid in the WAIR report (T7 p37) of 4 September 1998 wrote that Ms Newton suffered from mild depression related to physical problems resulting in poor concentration. She ticked boxes on the form indicating that Ms Newton was unable to work full days because of endurance problems (T7 p38), and that she thought there was no work Ms Newton could do for more than two years (T7 p39). Dr Reid also indicated that Ms Newton would need to work in a supported environment. Dr Reid stated that she had seen Ms Newton twice in the last 12 months.

31. Dr Dale, in a treating doctor's report of 21 September 1998, wrote that Ms Newton had attended the practice at which Dr Dale worked three times in the past 12 months. She too chose to tick boxes which expressed the opinion that Ms Newton was unable to work full days because of endurance problems, and would not be able to return to full or part-time work within two years (T4 pp21-26). Both Dr Reid and Dr Dale ticked boxes indicating that Ms Newton would be likely to be absent or late for work four or more days per month because of her impairment.

32. Dr Schenk, the first CMO to examine Ms Newton wrote on 11 December 1998 (T8 p43):

She was initially assessed on 6 November 1998. At that time she was noted to have a number of minor medical complaints, including travel sickness, chronic sinusitis, and non-cardiac chest pain. These conditions have been present for many years, and although all are of an ongoing concern to Ms Newton, none of them would interfere with her work capacity.

At that time, she was referred to Dr Sue Jeavons for a psychological assessment. I have now received Dr Jeavon's report, dated 8 December 1998, which states there is no evidence of any significant personality disorder or other psychological condition resulting in Ms Newton's history of chronic minor medical ailments.

In view of the above, Ms Newton is medically fit for work.

33. Dr Paulson the second CMO to examine Ms Newton wrote on 22 April 1999 (T23 p99):

Her subjective symptoms and her worries and concerns are acknowledged, but after considering all the information, which is not suggestive of major organic disease or psychopathology it is my view that she is medically fit for suitable non-heavy full-time work, for example clerical work, customer service or console operation.

34. Dr Harries CMO considered the material on the file and spoke to Dr Jones, another treating general practitioner, she wrote on 31 May 1999 (T16 p73):

This lady is noted to have made a number of claims for the DSP, all of which have been rejected on medical grounds. She was assessed by Dr Schenk on 6.11.98 and then, after the client complained about the assessment and recommendation she was re-examined by Dr Paulson on 22.4.99. Both doctors gave her a zero impairment rating and certainly the specialist reports that the client submitted did not indicate a medical condition that would in any way interfere with her ability to work, although her chronic sinusitis may certainly be irritating.

The client has now, prior to the appeal process, submitted an X-ray report dated 6.5.99. This indicates that she has a normal back X-ray with no pathology other than a few mid osteophytes. There has never been any previous mention of a back condition. I contacted Dr I D Jones who is stated to have been the referring doctor for this X-ray. He states that he is a GP and he has seen this lady on a number of occasions. He indicates that she has a number of GP's that she attends at any one time. He states that clinically she has nothing significantly wrong with her back or any other body system and that, in his opinion, she is currently fit for a number of full-time jobs.

Therefore, based on all available medical information I see no reason for this client to be re-examined following the submission of this X-ray report and her impairment rating remains unchanged. All previous recommendations as to her work ability remain unchanged. I have discussed my opinion with Steve Young the DO in Bendigo Centrelink.

35. I prefer the opinions of the three CMO's to those of Dr Reid and Dr Dale. They have not explained why they accept that a number of minor medical problems have rendered Ms Newton unable to work for over twenty years. Their indication that Ms Newton would be absent or late for work on four or more days per month must reflect what Ms Newton told them rather than their own assessment. Dr Reid only saw Ms Newton twice in 12 months and Ms Newton only attended the clinic at which Dr Dale works three times in 12 months. There seems on the evidence to be nothing about Ms Newton's health problems which on objective analysis shows her to have a continuing inability to work.

identification of a the original decision

36. Finally I consider it is appropriate to say something about the difficulty locating the original decision in this matter. It is a matter of some concern that in this matter, as in the last Social Security matter I decided, Re Secker and Department of Family and Community Services [2000] AATA 290, it is not possible to identify the original decision among the T documents. The process of administrative review requires that there be careful attention to the process of decision-making in order to establish the existence of a reviewable decision and jurisdiction in this Tribunal. It is necessary that there be an original decision, and any reconsideration which may be required by the relevant legislation, prior to review by this Tribunal. In this matter, as in Re Secker, the SSAT referred to a date as the date of the original decision, but there is no document before the tribunal bearing that date which could be characterised as either an original decision or even advice of the making of a decision.

37. The only document before the Tribunal bearing the date 27 January 1999, which is the date given by the SSAT as the date of the original decision, is a handwritten file note (T10) from J Fitzgerald. It states:

A/N rang me in regards to rejection of claim. Is very unhappy about the decision and a/n feels that she has not received a fair hearing from the CMO.

38. That note is clearly not a decision. It concludes with a note that the author is awaiting a report in the mail. The CMO report of Dr Schenk of 11 December 1998 is before the Tribunal (T8). Dr Schenk concluded at p43 that Ms Newton was medically fit for work. However there is no material before the Tribunal showing that Dr Schenk's report and the other medical material were considered by a delegate of the Secretary, nor that any decision was made as to Ms Newton's qualification for DSP, nor that such a decision was communicated to Ms Newton. It is important that all those steps be clearly identifiable in the documents, and be identified in the s 37 statement lodged with the Tribunal. I do suggest that more attention should be paid to compliance with procedural steps. It is difficult to feel confidence in the substance of decisions when the decision-makers themselves do not appear to have complied with the procedural requirements of the relevant legislation.

39. Under s 1283 of the Act this Tribunal has jurisdiction to review a decision which has been reviewed by the SSAT and has been affirmed, varied or set aside. The SSAT under s 1247 has jurisdiction to review decisions of an officer under the Act which have been reviewed by the Secretary, Department of Family and Community Services, the CEO of Centrelink or an authorised review officer and which have been affirmed, varied or set aside. The process in this matter so far as can be ascertained from the T documents was as set out below. The Tribunal's comments are in capitals:

4 September 1998 Claim lodged (T3) with treating Dr report by Dr Dale (T4)

21 September 1998 Work Ability Information report by Dr Reid (T7)

5 November 1998 Medical examination by Dr Schenk

6 November 1998 Letter of complaint from Ms Newton (T9)

8 December 1998 Psychologist's report, Dr Jeavons (T24)

11 December 1998 CMO report of Dr Schenk (T8)

27 January 1999 Miss Newton telephoned Centrelink (J Fitzgerald) "very unhappy about the decision." (T10 p65) [WHAT DECISION?]

26 February 1999 Appeal statement T22

22 April 1999 Further medical examination by CMO Dr Paulson (T23)

3 May 1999 Letter to Ms Newton from L G Morris Delegate of the Secretary to the Department of Family and Community Services. The letter starts: "You recently asked me to review my decision about your claim for Disability Support Pension." (T12) [THE T DOCUMENTS DO NOT CONTAIN AN ORIGINAL DECISION BY L MORRIS. THERE IS NO NOTE OF ANY CONVERSATION OR CORRESPONDENCE BETWEEN MS NEWTON AND LYNDAL MORRIS]

7 May 1999 Ms Newton rang in response to the letter of 3 May 1999 and said she would send in further medical material (T14)

31 May 1999 Report of CMO Dr Harries (T16)

3 June 1999 Telephone advice to Ms Newton that her claim remains rejected (T17)

15 June 1999 Letter of appeal from Ms Newton (T19)

8 July 1999 Referral to Authorised Review Officer stating customer was advised in writing of "reconsideration" on "-/12/98" and that a copy of the adverse decision is on the file (T25) [IF THERE WAS EVER A LETTER OF "-/12/98" IT WOULD HAVE BEEN THE LETTER ADVISING OF THE ORIGINAL DECISION BUT IT IS CERTAINLY NOT ON THE FILE]

28 July 1999 ARO decision affirming rejection of claim (T27) [THE ARO DECISION STATES THAT THE CASE WAS PROPERLY DOCUMENTED - IF SO THOSE DOCUMENTS ARE NOT BEFORE ME]

40. The summary set out above shows not only the lack of an identifiable original decision but also that this problem was overlooked (at T25 and T27), in spite of check lists on the forms requiring identification of the decision and notification to the client.

41. I have concluded that as a decision was clearly made to reject Ms Newton's claim for disability support pension, and as it was affirmed by an authorised review officer, and by the SSAT, Ms Newton must have a right to review that decision even though it can not be identified in the T documents. The failure on the part of Centrelink officers to clearly identify or correctly locate the original decision can not deprive Ms Newton of her review rights.

42. The decision under review will be affirmed.

I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: Anne O'Rourke

Associate

Date/s of Hearing 12 April 200

Date of Decision 4 May 2000

Counsel for the Applicant Nil

Solicitor for the Applicant Nil - Self Represented

Counsel for the Respondent Nil

Solicitor for the Respondent Nil

Departmental Advocate Mr T Baker