O'Connell and Secretary, Department of Family and Community Services [2000] AATA 5 (10 January 2000)

Last Updated: 14 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/630

GENERAL ADMINISTRATIVE DIVISION )

Re JULIE O'CONNELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date 10 January 2000

Place Melbourne

Decision The Tribunal affirms the decision under review. The applicant does not qualify for a Disability Support Pension.

(Sgd.) E.A. Shanahan

Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - level of disability - permanency of disability - ability to work for 30 hours per week

SOCIAL SECURITY ACT 1991 - s94(1)(a), (b), (c); s94(2)

Secretary, Department of Family and Community Services and Chin [1999] FCA 44

REASONS FOR DECISION

10 January 2000 Miss E.A. Shanahan, Member

1. The applicant, Miss Julie O'Connell, seeks review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 27 May 1999. This decision affirmed that of a delegate of the Secretary to the Department of Family and Community Services ("the Department") made on 15 March 1999 and subsequently affirmed by an Authorised Review Officer on 13 April 1999. This decision rejected Miss O'Connell's claim for Disability Support Pension ("DSP") on the grounds that Miss O'Connell was able to work at least 30 hours per week as defined in s94(5) of the Social Security Act 1991.

2. The Section 37 documents outline the applicant's disabilities and there is no dispute that she has severe bilateral sensori-neural deafness and a panic disorder linked predominantly to her hearing loss. Dr M. Soo of Health Services Australia Ltd. assessed the applicant's disability rating at 15 points in respect of her hearing loss and 10 points in respect of the panic disorder. Miss O'Connell's treating doctor, Dr R. Weiss, in his report dated 15 January 1999 confirmed Miss O'Connell's hearing disability and panic disorder, and was of the opinion that these conditions prevented her from returning to any work within a period of two years. He was also of the opinion that the disabilities would result in her being absent from work two days per month. Dr Soo was not of the opinion that her condition would affect her work performance.

3. At the SSAT the applicant gave evidence that she was able to hear well on the telephone, but had difficulties in hearing where there was any background noise. She stated that she was slow to catch on to various aspects of data entry and office jobs that she had done in the past, but the documents would indicate that she has worked intermittently throughout 1998 in the areas of data entry and telephone work. Miss O'Connell indicated that she does not mix well with other people in the work environment, but that her major problem is one of anxiety and, in particular, her concern that she would not hear a smoke alarm should it go off when she sleeps. Approximately once per day she develops a feeling that she is choking (diagnosed as globus hystericus by her treating doctor). Anti-depressant therapy has not been of benefit. Miss O'Connell indicated to the SSAT that she wanted to work, was applying for work and attending job interviews.

4. Miss O'Connell, who was self-represented, attended the hearing on 9 December 1999. She gave evidence to the Tribunal affirming that she had given at the SSAT, and once more indicated she would be most happy to work if she could obtain an appropriate job. She indicated she has difficulty in holding a position once obtained, and attributes a great deal of this to her inability to hear. She informed the Tribunal that her hearing deficit was diagnosed at the age of 17 and she first used a hearing aid at the age of 18. She was embarrassed to use the hearing aids and it was not until her mid-20's that she commenced using these devices on a regular basis. She worked regularly in factory work, shop work, office work and telephone work in her 20's and returned to work when her children were teenagers. She lost her hearing aid approximately one year ago and has been without this device for that period of time. She indicated the cost of a new hearing aid would be somewhere between $650-$700 and that she could not afford this expenditure. She outlined her current financial difficulties for the benefit of the Tribunal. In the 1998/99 Miss O'Connell earned a total of $11,000. She was currently in receipt of Newstart Allowance at the rate of $140 per week. She is paying off a small mortgage on the property she owns in Frankston and is in arrears with her council rates and also with her telephone account. She stated she had not worked for the past seven weeks. She had established a set lifestyle pattern wherein she starts walking the streets in Frankston from 5.00 am, she says, looking for money and returns home at 8.30 am to answer any phone calls for offers of work. She has not seen an ear, nose and throat surgeon for approximately ten years, but attends her audiologist regularly and understands that there is no further surgical or medical treatment that could benefit her hearing defect. In answer to questions posed by Mr Baker for the Department she indicated that the medication prescribed for her anxiety state had been ineffective and she had ceased taking it after a period of two days. She also stated that most of her jobs have come from agencies and occasionally in response to advertisements placed in the Age. She had worked for Ausdata for a period of three months in 1998 but was informed she was too hard to train. She had rung 20 agencies in the week prior to this hearing on 9 December 1999. She felt that if she had normal hearing she would have a full-time job and there would be no problems. On several occasions she reiterated her desire to work full-time provided she could get a suitable job and was able to afford the necessary hearing aids.

THE MEDICAL EVIDENCE

5. There is no dispute as to Miss O'Connell's disability nor its permanency. Her general practitioner, Dr Weiss, and Dr Soo of Health Services Australia Ltd agree. It is apparent that her panic disorder may result in interruption to any employment on occasions, but on Dr Weiss' evidence the applicant's deafness would also limit the types of environment in which she could work.

RELEVANT LEGISLATION

"94 Qualification for disability support pension

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;

(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

(d) the person has turned 16; and

(e) the person either:

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

(ii) has 10 years qualifying Australian residence, or has a 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.

Meaning of continuing inability

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; of

(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:

"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

"on the job training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

"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."

APPLICATION OF LEGISLATION TO FACTS

6. Miss O'Connell has been assessed as having a disability rating of 25 points arising from her bilateral sensori-neural deafness and panic disorder and the applicant satisfies s94(1)(a) and (b) in that she has a physical and psychiatric impairment. She also satisfies s94(1)(d) and (e). The only question for this Tribunal to consider is whether or not she has a continuing inability to work (s94(1)(c)). Work is defined in s94(5) to mean work 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.

7. The applicant gave evidence before the SSAT and this Tribunal that she was anxious to work and had communicated that sentiment to Centrelink on several occasions. In her claim for pension form, Miss O'Connell outlined her training, skills and experience and indicated she had a Business Studies Certificate, had completed a secretarial course, a course in medical terminology and word processing courses. She also outlined casual work she had performed between March and December of 1998. These periods of employment were sporadic and short in duration.

8. She has thus demonstrated an ability to work for up to 30 hours per week, even though she may have difficulty in finding the type of work to which she is best suited, namely office work and phone work, on a full-time basis.

9. Whilst the applicant's treating doctor, Dr Robert Weiss, was of the opinion that she would not be likely to be able to return to her usual job for more than two years, this does not tally with Miss O'Connell's claim for pension form which shows that she is still working on a casual basis, nor did her oral evidence before the Tribunal. Dr Weiss also felt the applicant would be likely to be absent or late for work two to three days per month as a result of her impairment. In contrast, Dr Soo did not believe the impairment would have any effect on her work attendance.

10. The respondent drew to the Tribunal's attention the recent Federal Court decision in Secretary, Department of Family and Community Services v Chin [1999] FCA 44 where Nicholson J considered the issue of deafness and inability to work. Nicholson J found that deafness alone did not provide that a person would have a continuing inability to work.

11. The Tribunal finds that Miss O'Connell has an ability to work and does not satisfy s94(1)(c) of the Act.

12. The Tribunal affirms the decision under review that the applicant does not qualify for a Disability Support Pension.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan,

Member

Signed: Judith Holt, Associate

Date of hearing 9 December 1999

Date of Decision 10 January 2000

Applicant Self-represented

Respondent Mr T. Baker, Centrelink