Pinchbeck and Department of Family and Community Services [2000] AATA 939 (27 October 2000)

Last Updated: 18 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 939

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/422

GENERAL ADMINISTRATIVE DIVISION )

Re Christine Patricia Pinchbeck

Applicant

And Secretary Department of Family and Community Services

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date 27 October 2000

Place Gosford

Decision The decision under review is affirmed.

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

MS SM Bullock

Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - Impairment Rating - Continuing Inability to Work

Social Security Act 1991 - ss 94 (1), (2),(3) and (5)

Schedule 1B to the Social Security Act 1991

Reasons for Decision

27 October 2000 Ms SM Bullock, Senior Member

1. This is an application for review made by Mrs Christine Patricia Pinchbeck to the Administrative Appeals Tribunal ("the Tribunal") of a decision made on 17 February 2000 by the Social Security Appeals Tribunal ("the SSAT") that Mrs Pinchbeck was not qualified to receive a Disability Support Pension (T2). That decision affirmed a decision made on 7 December 1999 (T13) by an Authorised Review Officer ("ARO") of the Department of Family and Community Services. The ARO's decision had in turn affirmed the original decision of a Delegate of the Department of Family and Community Services, who on 19 November 1999 decided that Mrs Pinchbeck was not qualified to receive a Disability Support Pension as her impairment did not reach the required permanent medical impairment of 20 points as required in the medical Impairment Tables contained in Schedule 1B ("the Impairment Tables") of the Social Security Act 1991 (T9).

2. A hearing was held before the Tribunal in Gosford on 10 October 2000. Mrs Pinchbeck ("the Applicant"), represented herself and provided oral evidence. The Respondent, the Secretary, Department of Family and Community Services ('the Department") was represented by Ms H. Schuster, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents, T1-T13") and the following exhibits:

Exhibit Description Date

A1 Letter from Dr S Kam General Practitioner 1 June 2000

R1 Respondent's Statement of Facts and Contentions 5 September 2000

R2 Computer Printout - "Jobseeker Job Details" undated

Issues

3. The issues to be determined in this matter are:

* Whether or not Mrs Pinchbeck has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the Impairment Tables contained in the Social Security Act 1991; and if so

* Whether or not Mrs Pinchbeck has a continuing inability to work because of the impairment where the impairment of itself prevents her from undertaking any work for at least 30 hours per week at award wages within the next two years; and either

* The impairment of itself is sufficient to prevent Mrs Pinchbeck from undertaking educational of vocational training or on the job training during the next two years; or

* If the impairment does not prevent Mrs Pinchbeck from undertaking education or vocational training or on the job training, such training is unlikely (because of the impairment) to enable her to do any work for at least 30 hours per week at award wages within the next two years.

4. At the commencement of the hearing in this matter Ms Schuster for the Department advised the Tribunal that based on a recent report by Dr S Kam, Mrs Pinchbeck's General Practitioner, the Department conceded that the appropriate impairment rating for Mrs Pinchbeck's condition was 10 points pursuant to Table 5.2 of the Impairment Tables which deals with the Thoraco-Lumbar-Sacral Spine.

Legislation

5. The relevant legislation in the matter is the Social Security Act 1991 ("the Act"). Qualification for the Disability Support Pension is dealt with under section 94 of the Act.

6. As relevant, section 94 provides:

"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..."

7. Subsection 94(2) of the Act deals with a person's continuing inability to work and as relevant provides:

"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.

..."

8. Also relevant is subsection 94(5) of the Act which defines such terms as "educational or vocational training", "on-the-job training" and "work" and provides:

"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.

..."

Background

9. The following information is provided by way of background and the facts contained within are not in dispute.

* Mrs Pinchbeck was born in Australia on 25 October 1951. She attained her Higher School Certificate and left school at age 18 years. Mrs Pinchbeck has a certificate in computer studies from TAFE (T5, p50).

* Mrs Pinchbeck last undertook sustained paid employment from 22 January 1997 to 3 June 1997 as a clerk utilising her computer and desktop publishing skills at Intel Publishing, East Gosford (T5, p51). She had previously undertaken work in such positions as a motel receptionist, farming and running a business.

* Most recently, Mrs Pinchbeck has been undertaking voluntary work as a sandwich hand at the Kibble Park Café in Gosford. This Café is run by volunteers and is a community support activity aimed at assisting disabled people in the Gosford area.

* Mrs Pinchbeck lodged a claim for Disability Support Pension on 14 October 1999 (T5), noting her physical disability of "cracked vertebrae".

* In a "Treating Doctor's Report" (dated 15 October 1999), General Practitioner Dr S Kam, reported that Mrs Pinchbeck had L5-S1 disc lesion, Scheuermann's Disease and chronic lower back pain which radiated to both thighs. Dr Kam also noted Mrs Pinchbeck could not stand or bend "for any periods" (T6).

* Dr Kam has been Mrs Pinchbeck's General Practitioner since 12 July 1991. He opined that Mrs Pinchbeck would not be able to return to her computer work for more than two years nor any other kind of full-time work. As at 14 October 1999, Dr Kam considered Mrs Pinchbeck could undertake any kind of part-time work (T6,p57).

* On 9 November 1999, Dr S Hutchison, Health Services Australia Medical Adviser, reported that a CT scan had revealed normal L3-4 and L4-5 with "presence of a mild central posterior bulgeHu of the disc without any evidence of nerve root compression at L5S1". Dr Hutchison further reported that Mrs Pinchbeck sometimes took Panadol for pain relief but that this was infrequent. Mrs Pinchbeck was noted by Dr Huchison to be able to walk one kilometre easily and probably more. Mrs Pinchbeck could sit for one hour and stand for one to four hours in her café job. Clinically, Dr Hutchison opined that there was no restriction of movement during the interview and assessed that Mrs Pinchbeck had a demonstrated loss of one quarter range of lumbosacral spinal movement and her reflexes were normal and equal. Dr Hutchison concluded that Mrs Pinchbeck's impairment rating under the Impairment Tables is five points pursuant to Table 5.2. In Dr Hutchison's opinion, Mrs Pinchbeck was considered fit for light or moderate duties not requiring any heavy lifting of carrying. Suitable work would include duties as a receptionist, light clerical work, sales or light process work (T7,p72).

* On 19 November 1999 a Departmental Delegate determined that Mrs Pinchbeck was not qualified for a Disability Support Pension as she did not have the requisite 20 impairment points (T9).

* On 25 November 1999, Mrs Pinchbeck sought a review of the Department's decision not to grant a Disability Support Pension (T11) and on 7 December 1999, an ARO decided to affirm the original decision of the Departmental Delegate. While the ARO noted Mrs Pinchbeck's inability to maintain 30 hours of work per week, she also noted Mrs Pinchbeck's discussion with the ARO that she could maintain four hours work twice per week, her ability to walk up to two kilometres and to travel to Sydney by train. The ARO considered that five points was an appropriate refection of Mrs Pinchbeck's impairment level from Table 5.2 of the Impairment Tables (T13,p80).

* On 17 December 1999, Mrs Pinchbeck made an application for review to the SSAT. The SSAT decided on 17 February 2000 that Mrs Pinchbeck had a loss of one-quarter normal range of movement. The SSAT noted:

"The Tribunal agrees with Mrs Pinchbeck that an assessment of loss of range of movement does not mean much to her to describe her capabilities and how she has learned to manage her pain. However, the Tribunal is constrained by the Impairment Tables in the Act and agrees with Centrelink that she has an impairment rating of 5 points." (T2,p6)

Because the impairment rating of five points was less than the required minimum rating of 20 points required under subsection 94(1)(b) of the Act, the SSAT affirmed the ARO's decision.

* On 16 March 2000, Mrs Pinchbeck made an application for review to the Tribunal writing that:

"I have continuous pain in my back which increases as the day proceeds." (T1,p2)

Evidence of Mrs Pinchbeck

10. Mrs Pinchbeck described for the Tribunal the history of her back condition, which she advised was as a result of a "cracked bone". In about 1997, when moving home, Mrs Pinchbeck had a heavy object fall on her and she injured her back. She was required to stay in bed for three days to recover. No hospital treatment was required at the time. Since 1997, Mrs Pinchbeck stated that her back condition has worsened.

11. Mrs Pinchbeck told the Tribunal that she is not receiving any specialist treatment for her back condition but has in the past received treatment from a chiropractor. This treatment assisted her, and she has also undergone some physiotherapy. Although finding it difficult to recall precise details, Mrs Pinchbeck informed the Tribunal that she had physiotherapy treatment during the earlier part of 2000, but that she did not like the resulting sensation from this treatment modality and had accordingly ceased consulting the physiotherapist.

12. In giving her oral evidence Mrs Pinchbeck described her back condition as fluctuating between three pain levels. The lowest level is a constant dull ache or pain present. Mrs Pinchbeck stated that if she exerts herself or undertakes more than her usual activity, then the pain level increases and is sharper and more noticeable. When Mrs Pinchbeck undertakes exercise or excessive activity, then the pain level is intense and unbearable. It was this third level of pain, which caused her to seek assistance in 1999 from the chiropractor, CR Nelson. Further, when Mrs Pinchbeck experiences pain at either level two or three, she takes Panadol for relief. Mrs Pinchbeck does not take any other medication for her back condition.

13. On a day to day basis, Mrs Pinchbeck has developed strategies to undertake certain activities such as house cleaning, washing and cooking. She currently lives in a one-bedroom cabin. Mrs Pinchbeck will vacuum half her home in the morning completing the remainder of the home in the afternoon. She is able to wash her clothes and hang out the washing. Cooking is also possible as the bench is at a good height. In terms of her personal care, Mrs Pinchbeck informed the Tribunal that she is able to shower and dress herself though finds it difficult to bend down to shave her legs. She also in recent times has noticed difficulty putting her wet washed hair in a towel.

14. Mrs Pinchbeck also gave evidence that she used to love to ride her bike and this was not only exercise but a much enjoyed recreational pursuit. Mrs Pinchbeck told the Tribunal that she is no longer able to physically undertake this activity. She is able to watch television for a short time while sitting but mostly lies on the floor. Mrs Pinchbeck also likes to read but again finds it most comfortable if she is lying down.

15. Walking is an activity which Mrs Pinchbeck greatly enjoys. She told the Tribunal that she is able to walk approximately one kilometre at least three days per week. This activity is dependent on her back being not too painful.

16. The level of back pain experienced by Mrs Pinchbeck varies from time to time. Mrs Pinchbeck's strongest submission to the Tribunal is that she has had to adapt her work, leisure and home duties to her back condition and to develop strategies, which do not cause her too much discomfort.

17. Mrs Pinchbeck told the Tribunal that she had left her last paid employment because it was becoming too difficult to work at the computer due to the pain in her back. Prior to undertaking this computer publishing job, Mrs Pinchbeck had undertaken a clerical course in 1996 at Gosford Hospital.

18. After leaving the East Gosford publishing firm, Mrs Pinchbeck worked for approximately one month in an art gallery where she undertook receptionist and sales duties. Again, she left the position because she found it too difficult and painful to work with her back condition.

19. In 1999, Mrs Pinchbeck undertook a 12 to 18 week hospitality course through a Federal Government-sponsored community education scheme. Mrs Pinchbeck told the Tribunal that she enjoyed hospitality work and believed she could undertake employment in this area but not for eight hours per day.

20. Currently Mrs Pinchbeck works in a voluntary capacity at the Kibble Park Café in Gosford. She used to work at the café as a sandwich hand for four hours twice per week but recently has reduced her work session to three hours twice per week. Mrs Pinchbeck's duties include serving at the counter and making coffee and milkshakes. There are between two and four people working at the café at any one time. Mrs Pinchbeck explained to the Tribunal that she could in fact work at the café three hours per day five days per week but does not do so because she can not afford the transport cost of four dollars per day.

21. The Tribunal referred Mrs Pinchbeck to Dr Hutchison's opinion that she could undertake employment as a receptionist, light clerical work, sales and light process work.

22. Mrs Pinchbeck stated that she did not like sales work and "was not one for selling". Quite apart form this constraint, Mrs Pinchbeck told the Tribunal that the physical demands of standing, serving customers, moving clothes around and the other sales associated activities would be physically impossible for her. In terms of light process work, Mrs Pinchbeck indicated that she could do this but not for eight hours per day. In relation to clerical work, Mrs Pinchbeck stated that sitting down using a computer and undertaking such sedentary work would play havoc with her back. This concern applied also to work as a receptionist. Mrs Pinchbeck told the Tribunal that her clear preference was for work in the hospitality industry such as at a café or restaurant.

23. In recent times, Mrs Pinchbeck has applied for positions in cafés or restaurants in the local area. Mrs Pinchbeck informed the Tribunal that her statement at Part J, Question 7 of her claim for Disability Support Pension was correct in that she would like to look for work or return to work as a sandwich hand or undertake café work (T5,p51). While working in the hospitality industry suited her temperament it was also more suitable in terms of her physical disabilities. Mrs Pinchbeck also submitted that with her condition, sitting produces more pain after a short time than either standing or walking. As she had informed the SSAT, she is able to sit for periods of 30 minutes to one hour but after this time the pain in her back intensifies and becomes intolerable.

24. Mrs Pinchbeck advised the Tribunal that she would be willing to be retrained or be assessed as to what her vocational training needs might be in light of her back condition. The services as provided by organisations such as the Commonwealth Rehabilitation Service were described to Mrs Pinchbeck and she again indicated her willingness to participate in any assessment or training program thought relevant.

25. Mrs Pinchbeck reiterated that she still applies for positions but has found that the main factor in her not being successful appears to be related to her age. She last applied for a position in a local restaurant one week prior to the hearing but was unsuccessful in her application. Mrs Pinchbeck continues to canvass for positions by looking in newspapers and contacting prospective employers by telephone. Currently she is in receipt of income in the amount of $437.00 per from Centerlink.

26. Mrs Pinchbeck concluded that the Tribunal should place greater weight on the report prepared by her treating doctor, Dr Kam, and his assessment of her level of impairment. Dr Hutchison, Medical Adviser with Health Services Australia, had only examined her once for 30 minutes. Mrs Pinchbeck stated that unlike Dr Kam, Dr Hutchison did not know of her level of impairment over the years. During the consultation, Dr Hutchison only undertook three activities, Mrs Pinchbeck informed the Tribunal, namely she tested her knee reflexes, looked at Mrs Pinchbeck's shaking hands and asked her to walk in a straight line.

Submissions

27. Mrs Pinchbeck submitted that her physical capabilities simply would not allow her to undertake work of eight hours per day. If required to undertake such level of activity, Mrs Pinchbeck submitted that she would be bedridden for days. Mrs Pinchbeck asked the Tribunal to consider that she knew in her heart that she was incapable of undertaking full-time employment. Mrs Pinchbeck submitted that she strongly desires to be able to work but cannot do so because of her physical impairment.

28. Mrs Pinchbeck contended that there had been a variety of impairment assessments provided by various people. Five points had been assessed by Dr Hutchison and the Department had accepted this rating as had the SSAT. Dr Kam had on 1 June 2000, assessed Mrs Pinchbeck's level of impairment as 20 points from Table 5.2 and following receipt of Dr Kam's advice, the Department had conceded not an increase of impairment rating to 20 points but to 10 points under Table 5.2. Mrs Pinchbeck submitted that it was those people who knew her least who had assessed her disability at a low impairment point level whereas Dr Kam who had been her treating doctor for years, knew her situation well. Mrs Pinchbeck contended that Dr Kam is in the best position to know her capabilities and accordingly his assessment should be adopted by the Tribunal.

29. Ms Schuster for the Department submitted that from Dr Kam's and Mrs Pinchbeck's evidence, the appropriate rating for the Applicant's back condition under Table 5.2 was 10 points to reflect that Mrs Pinchbeck had a loss of half the normal range of movement.

30. Ms Schuster referred the Tribunal to the fact that Mrs Pinchbeck had sat in the hearing for a period of two hours with little evidence of pain and that she also worked in a café for three hours twice a week where the duties were standing and walking. Ms Schuster accepted that Mrs Pinchbeck could not work for eight hours per day or 30 hours per week but submitted that from Table 5.2 a rating of 10 was appropriate to take into account Dr Kam's updated opinion. Ms Schuster contended that the next rating under Table 5.2 of 20 points was not appropriate given Mrs Pinchbeck's own evidence that her back pain did not prevent her standing for more than 15 minutes or sitting or driving for more that 30 minutes and further, that her back pain did not occur with most physical activities, only some.

31. Ms Schuster then referred the Tribunal to Table 20 of the Impairment Tables which is a Miscellaneous Table covering such conditions as malignancy, hypertension, HIV infection, morbid obesity, heart, liver transplants or conditions of chronic fatigue or pain. Reviewing the ratings under Table 20, Ms Schuster submitted that the most that could be awarded to Mrs Pinchbeck for her condition was 15 points to reflect moderate to severe symptoms, which caused some distress but prevented few everyday activities. This impairment rating covers situations where self-care is unaffected and independence is retained. Its purpose is to cover situations where the symptoms experienced may have a moderate impact on ability to perform or persist with work-related tasks and or attendance at work. The higher rating of 20 points under Table 20 deals with conditions where the symptoms are more severe with decreased efficiency to carry out many every day activities and most daily activities are completed with difficulties. Symptoms cause significant interference with ability to perform or persist with work and symptoms may have caused prolonged absences from work. The rating of 20 points from Table 20 would not reflect the level of incapacity as described by Mrs Pinchbeck, Ms Schuster submitted.

32. Even if Ms Schuster accepted a rating of 15 points under Table 20, this was still insufficient for Mrs Pinchbeck to meet the requirements contained in subsection 94(1)(b) of the Act requiring 20 impairment points. Accordingly, Ms Schuster submitted that as subsection 94(1)(b) of the Act was not met, Mrs Pinchbeck did not qualify for a Disability Support Pension as section 94 as a whole was not met.

33. Ms Schuster further contended that Mrs Pinchbeck does not have a continuing inability to work. While accepting that Mrs Pinchbeck would be restricted in what she could do and that she was unable to work 30 hours per week, with appropriate on-the-job training or vocational training, Ms Schuster submitted that Mrs Pinchbeck would be able to engage in work that was not as physically demanding as her previous paid employment and that she could work in areas such as light process work or light work within the hospitality industry. Ms Schuster concluded that Mrs Pinchbeck did not meet the legislative requirements for a Disability Support Pension as set out in section 94 of the Act and in such circumstances the SSAT's decision should be affirmed.

Findings

34. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the relevant legislation.

35. Mrs Pinchbeck impressed the Tribunal as being a truthful and credible witness.

36. Mrs Pinchbeck has a physical disability and therefore satisfies subsection 94(1)(a)of the Act.

37. The next issue for the Tribunal to determine is whether or not Mrs Pinchbeck has in impairment rating of 20 points or more under the Impairment Tables.

38. The Tribunal accepts that Mrs Pinchbeck experiences pain in her back which can escalate to an unbearable level with excessive activity. The Tribunal further accepts the opinion of Dr Kam, Mrs Pinchbeck's treating doctor, that she has a loss of half the normal range of movement as detailed in Dr Kam's letter of 1 June 2000 (Exhibit A1). Dr Kam further notes that Mrs Pinchbeck has pain with most physical activities and with standing for more than 15 minutes and with sitting more than half an hour. Mrs Pinchbeck however, described clearly for the Tribunal that while she does have trouble sitting for anything other than a very short period of time, she is able to stand and walk at the Kibble Park café for three hours per day twice per week and could, on her own evidence, undertake this level of activity for five consecutive days. Mrs Pinchbeck further told the Tribunal that she was able to walk one kilometre per day at least three times per week. This direct evidence from Mrs Pinchbeck conflicts somewhat with the report provided by Dr Kam. The Tribunal wonders in fact whether or not Dr Kam is aware of Mrs Pinchbeck's level of activity and her view that she would be able to work five consecutive days of three hours each day, where the predominate activity is walking or standing in the Kibble Park Café.

39. The Tribunal notes that Mrs Pinchbeck has been consistent in her evidence as to her level of activity both to the SSAT and the Tribunal. Accordingly, while the Tribunal accepts that there is a loss of half the normal range of movement in Mrs Pinchbeck's lower back, based on her further evidence which was confirmed by the Tribunal, her level of activity is not consistent with a rating of 20 points from Table 5.2. The Tribunal considers that a rating of 10 points from Table 5.2 is more appropriate as it reflects the loss of half the normal range of movement. The rating of 20 points pursuant to the Impairment Tables requires there to be a loss of half the normal range of movement as well as back pain or referred pain with most physical activities and with standing for about 15 minutes and sitting or driving for 30 minutes. The Tribunal is firmly of the view that based on Mrs Pinchbeck's evidence to it, while she does have back pain on some activities she is certainly able to stand or walk for considerably longer than 15 minutes. The Tribunal considers that Mrs Pinchbeck is limited in her ability to sit for longer than between 30 minutes and one hour. Overall however, the requirements for an impairment rating of 20 points from Table 5.2 are not satisfied.

40. As Ms Schuster noted in her submissions, it may be appropriate in the circumstances of this case, to consider Table 20 of the Impairment Tables. The instructions for Table 20 indicate that this Table is applicable when there is a separate loss of function in addition to the loss of function which can be rated in system-specific Tables such as Table 5.2. While the Tribunal is inclined to the view that in general Table 5.2 is the more appropriate Impairment Table as it deals with loss of function of the lower back in addition to the existence of pain; the Tribunal is prepared to consider, given the evidence, that Table 5.2 does not adequately deal with the level of Mrs Pinchbeck's chronic pain. Having considered Table 20 in light of the circumstances of this case and the evidence at the hearing, the Tribunal considers that the appropriate rating would be 15 impairment points from Table 20. Fifteen impairment points form Table 20 reflects there being moderate to severe symptoms, which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work related tasks and/or attend work, nonetheless full-time work could still be possible. The higher rating of 20 points under Table 20 is appropriate when more severe symptoms are present with decreased ability/efficiency to carry out many everyday activities. Most everyday activities can be completed under this rating but symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue; symptoms under the 20 point ratings should cause significant interference with the ability to perform of persist with work related tasks. Symptoms may also cause prolonged absences from work. While the Tribunal finds that Mrs Pinchbeck is restricted in her work activities, the evidence did not indicate any absences from work and indeed Mrs Pinchbeck told the Tribunal that the only reason she was not working five consecutive days at three hours per day was because she could not afford the travel expenses to and from work. In all the circumstances and in light of the beneficial nature of the legislation, the Tribunal finds that a rating of 15 points from Table 20 is appropriate. This rating does not meet the requisite 20 impairment points as required by subsection 94(1)(b) of the Act. Accordingly, as Mrs Pinchbeck does not meet part of section 94, she does not satisfy section 94 as a whole and cannot qualify for a Disability Support Pension.

41. Even if the Tribunal had found that 20 points was appropriate, it does not consider that Mrs Pinchbeck has a continuing inability to work as defined in subsection 94(2) of the Act. The Tribunal determines that Mrs Pinchbeck is capable and also willing to undertake vocational or educational training within the next two years. The Tribunal notes on the evidence before it that Mrs Pinchbeck has not been referred to a Departmental Disability Officer for assessment and/or training as might be provided by an organisation such as the Commonwealth Rehabilitation Service. Given that Mrs Pinchbeck's willingness to undergo vocational assessment and possible retraining, it is to be hoped that such motivation can be acted upon by the Department.

42. In all the circumstances and for the reasons set out above, the Tribunal determines that Mrs Pinchbeck does not meet the requirements of subsections 94(1) and 94(2) of the Act and as such is not qualified at this time for a Disability Support Pension. Accordingly, the decision under review is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 10 October 2000

Date of Decision 27 October 2000

Representative of the Applicant Self-represented

Representative of the Respondent Ms H Schuster, Departmental Advocate