Ursino and Secretary, Department of Family and Community Services [2003] AATA 649 (26 June 2003)

Last Updated: 10 July 2003

DECISION AND REASONS FOR DECISION [2003] AATA 649

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1925

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ANTONIO URSINO

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Ms G Ettinger, Senior Member

Date 26 June 2003

Place Sydney

Decision

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision of the Social Security Appeals Tribunal dated 26 November 2002 which affirmed the decision of the Authorised Review Officer of the Secretary, Department of Family & Community Services made on 18 October 2002, requiring Mr Ursino to satisfy the Newstart Allowance activity test. The Tribunal also affirms the decision to reject Mr Ursino's claim for a disability support pension.

[SGD] G Ettinger

Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - whether rating of 20 impairment points - whether Newstart Allowance activity test - decision affirmed

LEGISLATION

Social Security Act 1991 - s 94(1), (2), (3) and (5), s 603C

REASONS FOR DECISION

26 June 2003

Ms G Ettinger, Senior Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:

Senior Member G Ettinger

Signed:

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

Associate

Date of Hearing 26 June 2003

Date of Decision 26 June 2003

The Applicant self represented

Advocate for Respondent Ms R Quinn

DRAFT JUDGMENT

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2002/1925

By MS G. ETTINGER, Senior Member

URSINO v SECRETARY OF THE DEPARTMENT OF

FAMILY AND COMMUNITY SERVICES

SYDNEY, THURSDAY, 26 JUNE 2003

MS ETTINGER: Now what I like to do when I have considered all the issues is to write a few words, and so I will read them out to you. This is in the matter of Ursino and the Department of Family and Community Services, and the application to the Administrative Appeals Tribunal by Antonio Ursino was for review of a decision of the Social Security Appeals Tribunal dated 26 November 2002, to which I shall refer as the SSAT. The SSAT affirmed a decision of the Authorised Review Officer of the Secretary of the Department of Family and Community Services made on 18 October 2002, and of course an earlier departmental decision.

The SSAT affirmed decisions requiring Mr Ursino to satisfy the Newstart Allowance activity test, and rejected Ms Ursino's claim for a disability support pension. Mr Ursino appeared unrepresented and Ms Rachael Quinn represented the Secretary, Department of Family and Community Services, to which I shall refer as the Respondent or the Department. I turn now to the issues before the Tribunal.

ISSUES BEFORE THE TRIBUNAL

The issues are that the Tribunal had to decide whether to affirm, vary or set aside the decisions to require Mr Ursino to satisfy the Newstart Allowance activity test, and reject his claim for disability support pension.

In doing so, the Tribunal had to consider:

* whether Mr Ursino has a physical, intellectual or psychiatric impairment; and if so

* whether Mr Ursino has an impairment rating of 20 points of more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 ("the Act"), as required by subsection 94(1)(b) of that Act; and if so

* whether Mr Ursino has a continuing inability to work pursuant to subsection 94(1)(c) of the Act.

* whether Mr Ursino was incapacitated for work of at least eight hours per week, and that the incapacity of a temporary nature pursuant to section 603C subsections (1) and (2).

THE RELEVANT LEGISLATION

Now the legislation, relevant to the Tribunal's determination of this matter is section 94 of the Social Security Act 1991, to which I shall refer as the Act, and which sets out the qualification for a disability support pension.

It relevantly 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;

...

(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 form 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.

Note: For `work' see subsection (5).

(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.

(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

(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...."

In general terms, the impairment rating is determined under Schedule 1B of the Act and the "continuing inability to work" is determined by reference to subsections 94(2), (3) and (5) of the Act.

I am mindful that in deciding if we get down to 94(1)(c) in deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary and therefore the Tribunal, may not have regard to the availability to the person of educational or vocational training or on-the-job training. Similarly, if subsection 4 does not apply to the person, the availability to the person of work in the person's locally accessible labour market.

Section 100 of the Act (effective at the time of the original decision), deals with the commencement day for disability support pension and relevantly states:

"100. Early claim

...

(3) If:

(a) a person lodges a claim for a disability support pension; and

(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and

(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

Sections 603C(1) and (2) of the Act provide for persons who are incapacitated to have exemptions for the Newstart Allowance activity test.

EVIDENCE BEFORE THE TRIBUNAL

Now, the evidence before the Tribunal. The Tribunal took into evidence documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the ("T-documents"), and the Statement of Facts and Contentions of the Respondent as amended.

Mr Ursino represented himself, so it's quite difficult to discern his evidence from his submissions, but that is not a problem. I noted he gave oral evidence on oath and he also made submissions.

By way of background, I noted the following:

* Mr Ursino has been in receipt of Newstart Allowance since May 1995 and has made various claims for a disability support pension.

* His evidence was that he has suffered asthma for most of his life and I don't think that's in contention.

* Mr Ursino completed the School Certificate, trained at TAFE to be a barber and worked in that trade for some 10 or 15 years until he ceased due to his asthma.

* He then was self-employed and managed a bar for some three to five years.

* This didn't come up in the Hearing, but my understanding from the papers is that he had some financial problems and he has not worked in paid employment since 1991 or 1992.

CONSIDERATIONS

So I move then to consider section 94 of the Act to consider whether Mr Ursino can qualify for disability support pension. There was no disagreement between the parties and I find that Mr Ursino satisfies the tests in section 94(1) (a) of the Act, in that he has a physical impairment, that is asthma. I move then to consider section 94(1)(b) of the Act, where the threshold is 20 impairment points under the Impairment Tables pursuant to Schedule 1(b) of the Act.

In doing so, I have considered Mr Ursino's evidence, which is that he suffers five to ten asthma attacks per day, and treats those with various drugs he named and which are named by his doctor in the T-documents. Mr Ursino also told me that his condition fluctuates, and that his asthma is made worse when he has to deal with Centrelink which is why he did not want to undertake rehabilitation offered by Centrelink.

I have considered the reports of Mr Ursino's treating doctors Lombardi and Martino who own the same practice, his chest physician Dr Mann, and Dr Elliott qualified by the Respondent.

Mr Ursino was quite concerned that I did not base my findings on Dr Elliott's opinion alone, and clearly I cannot do that as it is my duty and in fulfilment of the requirements of procedural fairness, to consider all the relevant medical reports, even though I have not mentioned each one here.

Dr Martino: I noted Dr Martino had produced a report dated 16 September 1998 at T17, he wrote that Mr Ursino had mixed anxiety and depression with shortness of breath, and was poorly motivated. The Tribunal cannot take into account the issue of motivation in coming to its decision, although it notes that Dr Ryerson at T19 also came to such a view, incidentally Dr Ryerson at T19 on 20 October 1998, found a 5% impairment. There was also a report of Dr Martino at T18; he wrote there that Mr Ursino has obstructive airways disease and mixed anxiety depression which are long term and stable with a poor prognosis.

A further report of Dr Martino was at T20. His prognosis regarding the asthma on 8 January 1999 was that it would be good if the Applicant would stop smoking. Dr Martino also wrote on 15 February 1999 that he recommended Mr Ursino receive the DSP until his asthma was fully under control. At T22 dated March 1999 Dr Martino again opined that Mr Ursino needed rehabilitation because he was poorly motivated.

Dr Lombardi whose report at T21 was dated 25 September 2001, stated that Mr Ursino's condition was long term and fluctuating. He reported similarly at T47 on 15 August 2002. However, he was unclear in his report, how long it was before the Applicant could work. In one part of the report he stated it would be two years from August 2002, and in another that he did not know. That wasn't very helpful for the Tribunal.

Dr Elliott whose report dated 4 March 2002 was at T35, noted that Mr Ursino suffers from mild to moderate symptoms of asthma on most days, but that he had not been hospitalised in the last ten years. Mr Ursino confirmed that in his evidence. Dr Elliott allocated ten impairment points.

Dr Weingarten in her report at T24 dated 4 March 1999, gave Mr Ursino nil impairment points, mentioning he had not been hospitalised, and that his asthma responded well to medication.

Dr Mann, the specialist, had reports before the Tribunal at T29, T45 and T55. They were dated 15 September 2000, 6 August 2002 and 15 October 2002, respectively. In his first report on 15 September 2000, Dr Mann stated that Mr Ursino was a life-long asthmatic, that he started smoking at age 15, and at the time of examination in 2000, smoked 50 cigarettes per day. Mr Ursino told the Tribunal that he no longer smokes. Dr Mann stated that he could not find any evidence of irreversible airflow obstruction, and that there was no reason why Mr Ursino could not participate in the workforce.

He did not mention what type of work Mr Ursino could do, nor whether Mr Ursino could work full or parttime. In his second report, dated 15 October 2002, Dr Mann stated that Mr Ursino's asthma was under control.

The Tribunal: Now, I considered the Impairment Tables and the medical evidence, and was unable from all the evidence to conclude other than that Mr Ursino rates at most, ten impairment points. I noted his evidence that his self-care is unaffected, and noted his evidence that he has five to ten asthma attacks per day which his doctors said was controlled by medication. I find from the medical evidence, that Mr Ursino's asthma is of moderate severity and occurs most days of the year, and that he does have some prolonged attacks lasting more than four hours. However, none of that adds up to more than ten impairment points. I noted further that Mr Ursino no longer smokes which should also assist him.

Now, although Mr Ursino did not reach the 20 impairment points required to qualify pursuant to section 94(1)(b) of the Act, for the sake of completeness, I also considered his ability to work. Mr Ursino was confident in his evidence that if he had $40,000 he could run a barber's salon and employ people to work with the hair itself, while he ran the business. He explained that hair was undesirable for his asthma. He also thought he could be retrained, and provided his asthma was under control, could work in sales.

Mr Ursino recognised that he needed a clean, dust-free environment. This accorded with the doctors' opinions. Dr Elliot, Weingarten, at T23 opined that Mr Ursino could work in light duties in a clean environment, free of dust or chemicals and fumes. Dr Weingarten had suggestions that work could include being a taxi driver or light process worker, while Dr Elliott mentioned fulltime work as a bar attendant or console operator, and I noted that Mr Ursino did on the job learning for his bar work. I agreed with the evidence which stated that Mr Ursino could be retrained and could work more than 30 hours per week. Accordingly, he does not have a continuing inability to work.

Now, from the above it is clear that Mr Ursino does not satisfy the requisite tests in section 94 of the Act. In particular, he fails at 94(1)(b), because he does not reach 20 impairment points and he does not therefore qualify for disability support pension.

NEWSTART ALLOWANCE ACTIVITY TEST

I moved then to consider the claim for exemption from the Newstart Allowance activity test. Mr Ursino had an exemption from the Newstart Allowance activity test for a time until 6 March 2002 when it was refused, on the basis that his condition is permanent, and that he was not at the time suffering a temporary exacerbation. This decision was affirmed by an authorised review officer on 5 September 2002, and the SSAT on 26 November 2002.

I understand that Mr Ursino finds it difficult to have to look for jobs, and noted that he finds it stressful, and that his asthma then flares up. However, when I considered the evidence about Mr Ursino's incapacity and his work capability, I was satisfied that he does not meet the tests in section 603 of the Act, and that at the requisite time, he could work more than eight hours per week.

He is of course, not precluded, from applying again in the future if he is temporarily incapacitated and I have to say, that Ms Quinn did point that out to him.

DECISION

Coming then to the decision; I affirm the decision of the Social Security Appeals Tribunal dated 26 November 2002 which affirmed the decision of the authorised review officer of the Secretary, Department of Family and Community Services made on 18 October 2002, requiring Mr Ursino to satisfy the Newstart Allowance activity test, and I also affirm the decision to reject Mr Ursino's claim for a disability support pension.

Thank you very much.

Ms G Ettinger

Senior Member