Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56 (21 January 2003)

Last Updated: 23 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 56

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/73

GENERAL ADMINISTRATIVE DIVISION )

Re DIMITRIOS TRIANTAFILLOU

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr D Weerasooriya, Member

Date 21 January 2003

Place Perth

Decision The Tribunal sets aside the deicsion of the Social Security Appeals Tribunal that affirmed the decision of the Authorised Review Officer ("ARO") to cancel the applicant's disability support pension and, in substitution therefor, decides that the applicant continues to be qualified for disability support pension.

...........(sgd D Weerasooriya)...................

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - impairment rating - impact on function of two mild mental impairments interacting with each other

Social Security Act 1991 s 94

Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517

Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572

REASONS FOR DECISION

21 January 2003 Dr D Weerasooriya, Member

The Factual Background

1. The applicant was born on 27 September 1976 and is currently 26 years of age.

2. The applicant applied for and was granted the Disability Support Pension ("DSP") in 1993 on the basis of an intellectual disability and reduced capacity for independent living.

3. At the time he was granted DSP in 1993 on 22 December 1993, he was referred to Bizlink by Centrelink. Bizlink is a specialist employment agency funded by the Department of Family and Community Services to assist people with disabilities to secure open employment.

4. He continued to be supported by Bizlink until 28 October 1998 when Bizlink lost contact with him as he had moved to Darwin. On 20 January 2001 he was re-registered with Bizlink and is currently supported by this agency. (T22, page 109). This agency supplied a report dated 7 February 2002 to the Social Security Appeals Tribunal ("SSAT") at the end of its hearing. This report is in the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") at T22.

5. In the claim for DSP made in 1993 (T5, page 26), Permanent Medical Conditions were entered as ONE condition - "Learning Difficulties". He was rated for impairment using Table 12 of the Impairment Tables found in Schedule 1B of the Social Security Act 1991 ("the Act"). Based on the difficulty being Borderline - rating 3, Behaviour Not Affected - rating 0, and Capacity for Independent Living - needs help - rating 3, the impairment rating arrived at was 25%. He was found unfit for work in the open market and unfit for any occupational categories for 30 hours per week. His IQ was assessed by the school psychologist as:

* Verbal IQ: 73

* Performance IQ: 74

* Full scale: IQ: 72

confirming the appropriateness of his placement in Education Support.

6. On this occasion (in 1993) in an Australian Government Health Service medical and work history report, Dr Thong wrote under the heading 'General Assessment':

"Sixteen year old, borderline intellectual handicap. He has difficulty keeping up required work and took a long time to learn new skills. He has been referred to Emtech and Workplus who are specially qualified to assist people with intellectual disability, to find employment in the open job market. He would require a sympathetic and supportive employer who would monitor and supervise his work which is only limited to the simple manual task. (T6, page 34)

7. The applicant continued to receive DSP and was supported by Bizlink who included in its report the places he worked and the duration of each job between February 1994 and his current job at Jettys Restaurant which he commenced in 17 November 2001. He had changed employment 13 times in this period. On 21 April 1999 the applicant was due for review of his DSP and he completed the review form sent to him. In this (T8) he listed his medical condition as Attention Deficit Hyperactivity Disorder (ADHD) and, in answer to the question "how it affects your ability to work?", he noted "remembering things, if too much things to do and one thing got wrong, I get very frustrated and many things get forgotten". He was in Perth at the time and he saw Dr S De Tissera, a psychiatrist, from 11 December 1998 to 21 April 1999. Dr De Tissera submitted a treating specialist's report, which is at T9 page 43.

8. There is no mention in the T documents whether the documentation collected by Centrelink in Perth was acted upon. It appears that the applicant went to Darwin and had to fill out a work ability information professional report. This is at T 10, page 47 and was completed by a private psychiatrist, Dr William Knox, who had been treating him for less than two months. Again, the documentation does not indicate the outcome of this particular assessment. The medical records that then follow appear to be related to the definitive medical review for disability support pension that resulted in cancellation of his DSP.

9. The decision statement by the ARO is at T20. This is the decision that the SSAT affirmed and the Tribunal is reviewing.

10. The applicant was unrepresented and spoke to the Tribunal. He was keen to help and had some difficulty in presenting his case in a structured and coherent way, and was assisted and prompted by the Tribunal. He described how, when he was young, he had to attend special classes due to concentration problems, poor understanding, needing more help from the teacher than others and getting distracted easily. He went on to tell the Tribunal that after he left school, he was put on DSP because he had a learning difficulty. He indicated that at the time he had a lot of work, but he did not interact in work "very well" and he had done a lot of little jobs that lasted only for a few months, because things had to be repeated to him a few times, and didn't sink in:

"Well I thought it did sink in, but to the employer it didn't".

(Transcript page 4, para 10)

When asked whether things had changed in more recent times, he said he was still suffering with "now high anxiety and concentrating". He described anxiety as "it is just I get a rush like, I get asked to do something and sometimes I just - I can't understand it properly and I have to ask them again".

11. He said that compared to 1995 he is able to handle a job better now. He told the Tribunal that he was trying to do a course now. But he said that he "may not be able to do it because of his learning difficulty, which was a kind of disability". The Tribunal had some difficulty eliciting the reason why he wanted to do the course, which he seems to have decided to do "off his own bat" as it were.

12. When pressed further it appeared that he was attempting to break out of the negative feeling generated by being told that he could not do something else because of his disability (the learning difficulty).

"I have been told that you can't, you know because of your disability. But I want to just try it anyway"

(Transcript page 6, paras 10 & 15)

13. He had gone for an English and Maths test and was awaiting the result. He felt he did English satisfactorily, but with Maths he was doubtful.

14. He told the Tribunal that the job he was presently doing at Jetty's Restaurant as a kitchen hand had been a big improvement. He said he had worked as a kitchen hand a few times in the past and lasted only three to four months. He said he left because "a lot of times, the employers, like, work - weren't happy with my work". However he felt that the current job of washing dishes at Jetty's Restaurant is different:

"It is, like, they know me. And I know what I am doing more. I - it is more clear to me".

(Transcript, para 35, page 7)

15. He went on to tell the Tribunal that his employer knew of his problem and that Bizlink had supported him in the job, though he had found the job himself, and Bizlink had come later a few times to the work place.

16. When asked about other areas that he was having difficulty with in holding the job, he mentioned concentration. When asked exactly what he meant by that he said,

"Focusing, like if they asked me, like if I am - like for anything in general, not just so much work, but if they asked me to do something I - like - I get distracted very easily from what I have to do, my task is to do. And a lot of the times, my mind is like sort of jumping, you could say, very quickly - thinking a lot of things at the same time."

(Transcript, page 8)

He went on to social problems and problems with work mates.

17. He went on to describe to the Tribunal what he meant by anxiety:

"[DR WEERASOORIYA:] ...how would you describe it if...you were trying to tell somebody that you are anxious?

[MR TRIANTAFILLOU:] - I suppose wanting things that are going to happen next year to now, or its thinking...

Yes you're anticipating problems when you probably need not or may not have reason to? - Yes.

Okay that is one? ..And I am constantly, like, at my work and I am doing something and I am - could be thinking that this is going to happen as a result of this but it could not be that but I will just think it anyway.

Yes so you...? ...Probably I am very negative.

All right. Yes right? .. I am not very positive in a lot of things too.

Right?... Because a lot of things, they have gone wrong, in my past with work.

Yes I understand all that. That is good you are doing well?...Yes.

So keep it up, tell us more?...And I am always questioning my - my job. Always questioning, will this last or is this just - is it me, or you know, will it just keep on going and I like to - and that is why I am doing this course thing so I can at least try and change the negative or at least try and look at a positive note.

Right okay?...Yeah and my anxiety, like, it is - like, I just want to do - I want to, like, do the right job and I get very anxious I think because my past sort of - my work hasn't been too well but I don't focus at that but it just tends to, my mind does, think about it and then I am, like, trying to - like, I am - all the time the chefs, like, tell me...

So when you get anxious, do you have other symptoms associated with the anxiety or sort of nervousness, is that another term that you could use...Yeah nervousness.

Yes, all right, well tell me where you get nervous, give us an example? ... Like I get very nervous around crowds."

(Transcript, page 12)

He went on to talk about friends and family. He told the Tribunal he can handle money, but hasn't got a credit card because they charge too much interest. He told the Tribunal that he was physically strong. He used to go to the gym, and was careful with his diet.

18. During examination by Mr Jones the applicant was asked about his current work at Jetty's Restaurant:

"And currently, how many hours a week do you work there? ... it goes up and down, it varies. Sometimes 60 hours a fortnight, maybe 30 or 80 or - it jumps up and down.

So it is all over the place, is it? ...Yep.

But sometimes it gets up to 60 hours a fortnight? ...Yeah, sometimes.

Okay and how do you cope with those weeks, can you cope with extra work when you need to do it?... Yeah, it's okay.

Okay. Have you had to have a lot of sick leave? ...Never.

Never? ...No.

Okay. If you are at work and you got a bit anxious because maybe you weren't sure if you were doing the right thing, as you have described to us, has it ever got bad enough that you have had to leave for the day? ...Well once it got terribly that bad I was just, like, I wanted to go but I was thinking maybe the employer might, you know, not like that and I might lose my job or something like that so I was - just stick at it.

So what did you do, I mean did you have a strategy, did you go for a walk or how did you get over your anxiety? ...I just tried to relax. I was sort of thinking, relax in your mind, just don't - calm down."

(Transcript, page 16)

On further examination by Mr Jones he said he did not see a doctor regularly, but that one stage he did get some antidepressants from a doctor a couple of months ago.

"Was there a specific incident or something that happened that made you want to go on antidepressants or was it just a build up of things?...I was very anxious and I didn't know what to do.

Yes? ...I wanted to relax the anxiety so my - just to reduce it.

(Transcript, page 17)

19. The Tribunal asked him about how he came to be diagnosed with ADHD. The diagnosis was not made while he was in special education. It was first made by a treating psychiatrist doctor, Dr S De Tissera in December 1998 when he was 22 years old. He told the Tribunal he was given tablets to help this particular disability, and indicated that they helped him a lot and he took them over two years. He said he slipped back when he started abusing the tablets which he knew all along was "speed", and his doctor ceased prescribing them. He obtained supplies mostly off the streets over a period of 5 months or so.

When he was in Darwin, he was under the care of his uncle who advised him and helped him get off the tablets. He and his uncle did not think of restarting the tablets in the proper way and dosage owing to the risk of temptation to abuse and for fear he might have side effects, or become immune to them. Instead he got onto a treatment plan involving control of his diet which he thinks helps him a lot provided he kept to the plan. He slips back if he relaxes on the diet.

20. The Tribunal asked him how the DSP helps him:

"...Like, it just helps me to be able to fall back on the pension in case I do lose a job the way I have in the past. And a lot of times I am working, so I probably, like, you know, like a - a lot of people don't. They abuse or they use the pension. They just sit on it but I don't do that, I go out and work. But just, yeah, as I am working now and, like, just the fact that it is there can - in case - in because of my disable - certain - factors, it can help me just lean on it a little bit until I go back to work again".

(Transcript, page 11)

Legislation

21. The relevant provisions of the Act are as follows:

"94(1) [Qualification - continuing inability to work] 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

...

s 94(2) Meaning of continuing inability. 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."

Medical reports

22. The Tribunal read through the following medical reports:

(1) Commonwealth Medical Officer Report dated 30 June 1993 (T5, pages 26-31);

The Tribunal notes that the applicant was assessed on one condition namely learning difficulties and was allocated 25 points on the impairment table.

(2) School psychologists report of 6 July 1993 giving assessment of his intellectual functioning as:

Verbal IQ: 73

Performance IQ: 74

Full scale IQ: 72

(3) Medical report dated 21 April 1999 from the treating psychiatrist Dr S De Tissera (T9 pages 42 and 43). Dr Tissera nominated TWO intellectual conditions that affect the applicant's capacity for work:

(a) Attention Deficit Hyperactivity Disorder (ADHD)

Duration: life. In the column headed 'Describe the ways in which the condition prevents the person from working or limits his ability to work' Dr De Tissera wrote "poor attention, impulsivity, forgetfulness, poor frustration tolerance".

(b) Learning disability - also life duration. Dr De Tissera noted in this section, "[L]imits his working ability, self esteem".

Both conditions were long term. Condition (a) was 'improving' and the prognosis was 'good'. Condition (b) was 'stable' and the prognosis was 'fair'. He noted that his diagnoses were based on DSM IV (Diagnostic and Statistical Manual of Mental Disorders [American Psychiatric Association]) criteria and the assessment by the school psychologist and that the applicant had attended a special school. In the column marked 'Details of treatment' he wrote 'Dexamphetamine 10mgs bd.' The Tribunal notes that he had been the applicant's doctor for four months from 11 December 1998 to 21 April 1999.

(4) Work ability information report dated 25 September 2000 from Dr William Knox, a private psychiatrist in Darwin (T10, p 46). Dr Knox noted the impairment as learning difficulty (special school) and probably attention deficit disorder. These two impairments were treated as one and rated as constant, permanent, treated and stable. He thought the applicant could now work 8-14 hours per week, depending on the type of job and understanding of the employer. He went on to note that "[T]his young man has underlying cognitive disorder affecting his ability to understand and grasp concepts, deal with emotional frustration, and persevere. Will need a straightforward position with a supportive, patient employer".

(5) Treating doctor's report dated 10 July 2001 from Dr Glynatsis (T12, pages 58-61). Dr Glynatsis indicated one current condition: "ADHD - poor concentration, agitation, poor memory, date of onset childhood". The treatment was recorded as "Dexamphetamine, nil at present".

(6) Psychological assessment by Ms Kim Groves, Consultant Psychologist, dated 9 September 2001 (T13, pages 62-65). Ms Groves noted at page 64 that:

"Mr T outlined his work history and I noted he had difficulty presenting this history in an organised and chronological manner. He demonstrated difficulty establishing time frames, and I therefore doubt I obtained a reliable account of his occupational history".

At page 66 she noted:

"...he presented with an IQ in the borderline range, and very mild cognitive deficits associated with speed of information processing, verbal abstract reasoning, and difficulties with working memory...it is my opinion that his mild cognitive deficit was contributed to by mild generalised anxiety...It is likely that [the applicant] did suffer from ADHD in childhood and adolescence and this condition would have impacted upon his attention and concentration. However it is my opinion that this condition has now resolved. This is evidenced by the fact that he no longer requires treatment."

(7) Treating Doctor's Report for DSP signed by Dr Glynatsis on 10 July 2001 (T12, page 58). In section 2, question 2, in answering the question 'When is the patient likely to be able to return to any kind of full time work for at least 30 hours per week?' Dr Glynatsis ticked the box labelled 'more than 2 years'. In answering question 3 - 'Is the patient likely to be able to do any work for at least 8 hours per week within the next two years?' Dr Glynatsis ticked 'Yes' and also commented "supportive sheltered work environment".

(8) Medical assessment report dated 27 September 2001 by Dr Stanbury, Senior Medical Advisor, HSA Darwin. (T14, page 69)

(9) Medical report by Dr S Law, Psychiatrist, undated, but filed at Centrelink on 12 November 2001 (T17, page 92). The applicant had been Dr Law's patient since 5 November 2001. There was no mention of ADHD in this report. Two conditions are reported under diagnosis:

(1) Learning disability

(2) Borderline intellectual incapacity

What are the Applicant's Impairments that are Documented, Diagnosed, Treated and Stabilised?

23. The Tribunal considered all the medical reports, including the psychologists' reports, in order to arrive at the follow finding as to the applicant's impairments.

24. There is consensus in all of the reports that the applicant suffers from a learning disorder diagnosed since primary school, thereby necessitating his having to attend special classes throughout his schooling.

25. The treating doctor who saw him for the longest period (four months) was Dr De Tissera, a qualified psychiatrist authorised to prescribe Dexamphetamines for patients with ADHD. Dr De Tissera's certificate was dated 21 April 1999 (T9). He was the first treating doctor to diagnose the applicant as having TWO separate intellectual disabilities or conditions (see paragraph 21 above).

26. Ms Groves' opinion was that the applicant "...is not suffering an attention deficit disorder at the current time", the current time being between 10 August 2001 and 27 August 2001. Her report did not indicate whether she elicited more detail from the applicant as to when he was diagnosed, who made the diagnosis, what treatment and dosage he was on, whether he benefit, was compliant, et cetera, that would have alerted her to the fact that the reason he ceased taking them were not because he had recovered from his ADHD but was a result of his abusing the therapeutically effective drug. This was the evidence he gave to the Tribunal. The Tribunal notes, however, that she did find that he had a mild "unspecified cognitive" disorder which she rated as minimal and which was impacted on by a mild generalised anxiety.

27. The Tribunal also notes that her assessment of this cognitive deficit was made about 20 months after Dr De Tissera wrote his report and the applicant could well have gone further into remission in keeping with Dr De Tissera's opinion that the prognosis for the condition was good.

28. Ms Groves also opined that the applicant could work unsupported in the open workplace for 30 hours a week. Her opinion is diminished by the admission that she doubts that she got a proper work history from the applicant.

29. The Tribunal notes that her report influenced Dr Stanbury to consider only intellectual incapacity to be the "documented, diagnosed, treated and stabilised long term incapacity " that the applicant suffered. The 10 points he correctly assigned to this was insufficient to allow the applicant to surmount the first hurdle.

30. The Tribunal prefers the diagnoses of his conditions made by the treating consultant psychiatrist Dr De Tissera in keeping with diagnostic criteria. It also accords with the evidence of the applicant.

31. The Tribunal notes that even Ms Groves acknowledges that at the time she saw him he had a cognitive impairment which she classed as very mild and was impacted on by a mild generalised anxiety. The Tribunal further notes that in the end both specialists agree that the applicant had TWO separate mental (as opposed to physical) impairments.

32. The Tribunal finds that the impairments that satisfy the requirements of ss 94(1)(a) and 94(1)(b) are the two intellectual impairments of:

(i) cognitive deficit (ADHD in partial remission)

(ii) intellectual disability

Two tables for assessment of work-related impairment as found in Schedule 1B of the Act are relevant:

(i) Table No. 8 (Neurological function). Cognitive deficit - whether it is labelled "ADHD improving", "ADHD in partial remission" or "non specific cognitive disorder" - are all within the ambit of neurological function;

(ii) Table No. 10 (Intellectual disability). Learning difficulty related to a low IQ is scored under this table.

33. The Tribunal went on to consider the impairment ratings for these two impairments.

34. The impairment in relation to his cognitive defect (which the Tribunal prefers to describe as 'ADHD in partial remission' is assessed against the criteria in Table 8 (Neurological Function). This Table has four clusters of areas of neurological function. The Tribunal finds that the applicant's impairment falls most closely within the 3^rd cluster in this Table - "moderate impairment of problem solving and ability to concentrate: relies on accumulated knowledge. Suffers significant disadvantage in circumstances requiring complex decision-making or non-routine activities, ie, when past decision-making is not directly relevant. Has reduced initiative/spontaneity, reduced ability to concentrate and/or reduced capacity for abstract thinking". Based on this finding the applicant scores 20 points on the impairment table.

35. The relevant table for the learning disability impairment is Table 10 (Intellectual Disability). This table is scored on three criteria - IQ, adaptive behaviour and capacity for independent living. The score is added and a rating obtained depending on the score. The applicant's IQ falls between 70 and 79 and gets a score of 3. His adaptive behaviour gets a score of 0 because he has not got moderate to severe behavioural problems. His capacity for independent living again scores a 0 as he is capable of independent living. Based on the score of 3 his rating is 10 points.

36. Adding the scores for both impairments, the result is an impairment rating of 30 points. The Tribunal finds, therefore, that the applicant satisfies sections 94(1)(a) and 94(1)(b) of the Act.

37. The Tribunal had to consider another impairment that came up during the hearing. Mr Jones for the respondent, after listening to the applicant's evidence, indicated that the condition of anxiety/depression could have been advanced as an impairment in order to surmount the hurdle of 20 impairment points required in s 94(1)(b). The Tribunal could not accept this because of the important requirement in paragraph 4 of the Introduction in Schedule 1B of the Act that each impairment should be documented, diagnosed, treated and stabilised.

38. The only 'documentation' regarding generalised anxiety was in the psychologist's report. There was no documentation or independent evidence about depression. The diagnosis was not made according to accepted criteria, for example DSM IV. There was no treatment in any real sense of counselling, monitored medication or follow up. According to the applicant's evidence (which was not challenged) and which the Tribunal accepted, his anxiety was getting worse during the last two years.

39. However, in regard to the condition of "Generalised Anxiety" noted by the psychologist Ms Groves, the Tribunal finds that:

(a) the applicant does also suffer from this mental condition;

(b) it is the direct consequence of his documented, diagnosed, treated and stabilised mental impairments;

(c) it is in turn impacting adversely on these impairments;

40. it cannot however be given an impairment rating as it has not yet been documented, diagnosed, treated and stabilised as required by the Act.

41. In order to be eligible for DSP he also has to satisfy section 94(1)(c) of the Act (that the person has a continuing inability to work). The evidence is that the applicant's ability to cope with jobs as a kitchen hand (mostly for less than 30 hours per week) have improved considerably since 1994 when he was first granted DSP. He has continued working as a kitchen hand in the job he currently holds since 17 November 2001 (a period of just over a year). In this current occupation he has sometimes worked a 30 hour week and has been paid award wages. He had had more experience with kitchen work, and interacted with different colleagues. He has been supported by Bizlink even though he found this job himself. His employer was sympathetic and his workplace supportive. A supportive and sympathetic employer has been the proviso added by most doctors considering his work ability. He has a supportive family and he has been supported by DSP up to now.

42. It is clear on the material available that the applicant is in a rather unique position. His impairments are not severe enough that he can be placed in a sheltered workplace as persons with a much lower IQ would be. He is not quite 'bright' enough (to put it in lay terms) to access or be trained for any but unskilled labour. Furthermore, he is physically quite well.

43. In the evidence before the Tribunal there seems no doubt that he is 'bright' enough to hold down a position of kitchen hand for a period of at least one year in a supportive workplace though not continuously for 30 hours a week. However, it is the impairment of neurological function involving cognition - memory, comprehension and reasoning - that has been attributed variously by the specialists to ADHD, ADD, and unspecified cognitive disorder - that is preventing him holding his job for very long.

44. It is also clear that this aspect of his impairment is improving, ie from being mild, it is becoming milder. This has been noted by Dr De Tissera who noted at (T9, page 43) that the condition was 'improving' and the prognosis was "good", whereas learning difficulty was 'stable' and the prognosis was "fair".

45. The Tribunal considered that this case is somewhat unusual in that:

(a) the two impairments are both "mental" impairments;

(b) they are both categorised as "mild";

(c) while the intellectual impairment is relatively 'static', the cognitive impairment can be, though mild, 'dynamic' - and can fluctuate even within the mild range, quite unpredictably;

(d) the cognitive impairment can be affected adversely by anxiety or depression both of which are also themselves disorders of neurological or "mental" function.

The Tribunal further notes that though these two impairments are separate, and each is scored separately on the impairment tables, in reality, they interact with each other on the same brain. The resulting "brain impairment" could sometimes be worse than the simple addition of the effect of each impairment if one of them is dynamic and erratic and unpredictable. So that though each of these defects is at the mild end of the spectrum, when acting together in the same brain their effect could well at times be worse than mild and quite disabling.

46. The Tribunal then considered the material to find the answer to the relevant question: "At the time of cancellation of the DSP had the ADHD improved to the extent that it was so minimal that it was not contributing to his inability to hold his job for reasonable periods without a supportive workplace or help from a supportive agency like Bizlink?"

47. Listening to the applicant's evidence, the Tribunal had a sense that he was keen to break away from the poor self image, and lowered self-esteem engendered by his having to have special education and that he longed to be independent like his peers. His management of his personal affairs, capability of independent living, attempts to keep in physical shape, fighting his drug habit and finding jobs for himself to boost his confidence in his own ability rather than seek the help of Bizlink - all point to this.

48. He was asked could he hold down a job as a parking attendant, and he thought he could. He was asked by Mr Jones if he could continue to work at his current job at Jetty's at award rates for 30 hours per week and he said he could. The Tribunal does not consider his assessment realistic, or that, in view of his impairments, his own assessment is likely to be reliable. The Tribunal sees these admissions as a part of his yearning to break out of his dependent role for the sake of his self-esteem. Having considered the applicant's impairments in the way outlined above, the Tribunal felt that the best way to assess the extent of how the combined effects can affect work can only be found by noting how the two impairments interact together and impact in real life work situations.

49. The Tribunal considered that the report of the manager of Bizlink, Ms Doyle, addressed this issue and during the Hearing attempted to obtain her evidence by phone. Unfortunately, she was not available on the day and Mr Godfrey, who joined Bizlink much later but had been involved in the applicant's case since 21 November 2001 and up to the current time, was able to give evidence on the phone. His evidence indicated that the applicant was not yet quite ready to manage on his own, even with a sympathetic and supportive employer, in the open workplace. The Tribunal agreed with his assessment.

50. In order to satisfy s 94(1)(c) of the Act the applicant must have a continuing inability to work. The meaning of continuing inability to work is set out in s 94(2) of the Act (see paragraph 21 above).

Work is defined in s 94(5):

"94(5) [Interpretation]

"work" means work:

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

(b) that exists in Australia..."

51. In Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 (at 525), the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:

"When considering the issue of work in this context, the Tribunal is of the view that it is the normal workplace against which a person's abilities are to be judged and not the workplace of the benign employer".

Taking into consideration the special circumstances of this case involving the specific benefit of disability support pension the Tribunal in the present case interprets work to be work that is carried out in the complex entity that is the "open workplace" and not work that is insulated from the dynamic and unpredictable demands of this entity. There are other arrangements and benefits for work in sheltered workplaces.

52. The Tribunal then considered the provisions of s 94(2) on the lines suggested by Drummond J in Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572 as they apply to the peculiar circumstances of this case - and finds - as follows:

(i) the applicant satisfies s 94(2)(a) in that his 2 impairments are of themselves sufficient to prevent him doing any work within the next two years. ie. Work for 30 hours per week at award wages in the open workplace.

(ii) he does not satisfy s 94(2)(b)(i) as these impairments, though of themselves are sufficient to prevent him from undertaking educational or vocational training - do not prevent him undertaking "on-the-job" training in the supported work (mostly under 30 hours per week) that he is currently engaged in.

Therefore the Tribunal had to consider s 94(2)(b)(ii) using the interpretation suggested by Drummond J in Pusnjak at paragraphs 13 to 35, allowing a less rigid use of the word "impairment".

53. The Tribunal asked the question "would the on-the-job training that was currently provided him at his workplace be unlikely to allow him to perform work that he now cannot perform taking into account his impairments - now including also the generalised anxiety directly related to his two 'accepted' impairments?

54. The Tribunal finds that the answer is in the affirmative. In arriving at this conclusion the Tribunal followed the guideline as expressed in Hamal, to the effect that impairments that have not been given points on the Impairment Tables can, provided those impairments arose directly out of, or consequential to, the documented diagnosed and stabilised impairments, be also considered by the Tribunal when considering continued inability to work.

Findings

55. Based on all the material before it and the reasons given, the Tribunal finds that the applicant has a continuing inability to work because his impairments of intellectual disability and of his Attention Deficit Hyperactivity Disorder going into remission are of themselves sufficient to prevent the applicant from doing any work within the next two years; and although the impairments do not prevent the applicant from undertaking on-the-job training such training is unlikely (because of the impairments) to enable the person to do any work within the next 2 years.

56. The applicant therefore satisfies ss 94(1), 94(2)(a) and 94(2)(b)(ii) of the Act.

Decision

57. The Tribunal sets aside the decision of the Social Security Appeals Tribunal that affirmed the decision of the ARO to cancel the applicant's disability support pension and, in substitution therefor, decides that the applicant continues to be qualified for disability support pension.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Weerasooriya, Member

Signed: ..........(sgd V Wong)..........................................

Associate

Date/s of Hearing 25 November 2002

Date of Decision 21 January 2003

Counsel for the Applicant In person

Counsel for the Respondent Mr A Jones

Solicitor for the Respondent Advocacy and Administrative Law Team, Centrelink