Brown and Secretary to the Department of Family and Community Ser vices [2003] AATA 77 (24 January 2003)

Last Updated: 28 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL

Nº V2002/25

GENERAL ADMINISTRATIVE DIVISION

Re: BEVERLEY JEANETTE BROWN

Applicant

And: SECRETARY TO THE

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal: Miss E.A. Shanahan, Member

Date: 24 January 2003

Place Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY - application for age pension (blind)/disability support pension - definition of legally (permanently) blind - quantification of the third limb of the definition of being permanently blind - a combination of visual defects resulting in the same degree of visual impairment as that occurring in the first and second limbs

Social Security Act 1991 s.95(1), Schedule 1B

Secretary, Department of Social Security and Oakey (AAT 9051, 13 August 1993)

REASONS FOR DECISION

24 January 2003 Miss E.A. Shanahan, Member

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("SSAT") delivered on 5 December 2001. The SSAT affirmed the primary decision of 28 June 2001 and the subsequent authorised review officer's (ARO) confirmation on 9 August 2001. The SSAT had determined that the applicant was not considered permanently blind under s.95 of the Social Security Act 1991 (the Act). The applicant had sought a pension under Age Pension (Blind) because she did not meet the assets test associated with Disability Support Pension (DSP). At the hearing on 5 December 2001, the SSAT affirmed the decision under review as there was no alternative but to do so given the requirements of s.95 of the Act.

2. The applicant was represented by Mr J. Price, solicitor of Garland Hawthorn Brahe, and the respondent by Ms P. D'Cunha, a Centrelink advocate. The applicant had intended to call Professor E. Storey, Professor of Neuroscience at the Alfred Hospital, the applicant, and the applicant's husband, Mr P. Brown, and the respondent gave notice of their intention to call Dr M. Lazarus, Eye Specialist, by telephone.

3. Prior to proceeding to the evidence, the Tribunal indicated that the only issue before it was the interpretation of s.95(1) and s.95(1)(a) of the Act with respect to Qualification for Disability Support Pension - Permanent Blindness. Both parties agreed that this was the issue to be considered. After further discussion it was decided that the decision under review would be affirmed but that further elucidation by the reporting expert medical witnesses on the basis of s.95(1) and its interpretation would be sought.

4. The Tribunal had examined all the written documentation and in particular the reports of Dr I. Williams, neuro-opthalmologist and Professor Storey.

5. Both Professor Storey and Dr Williams had, in their reports, indicated that the applicant was partially blind despite the fact that she did not meet the criteria of s.95(1). These criteria are based on visual acuity and visual field testing and appear to have no reference to neurological integration of visual inputs. It is agreed that the applicant does not meet the criteria for "permanent blindness" as stated in Schedule 1B (at paragraph 10.3):

...

10.3. Permanent Blindness is not defined in the Act. The Guide to the Act (3.6.2.40 Assessment of Blindness for DSP) provides that a person is considered to be permanently "blind" for the purposes of the Social Security Act if any of the following criteria are satisfied-

(a) visual acuity on the Snellen Scale after correction by suitable lenses is less than 6/60 in both eyes; or

(b) field of vision is constricted to 10 degrees or less of arc; or

(c) a combination of visual defects result in the same degree of visual impairment as that described above.

...

6. Both Dr Williams and Professor Storey have provided opinions that the applicant was in effect legally blind or, to use Professor Storey's terminology, functionally blind. While all visual acuity testing was above the legislative criteria, both Professor Storey and Dr Williams were of the opinion that the applicant's "blindness" was due to bilateral occipital lobe atrophy which was probably due to Alzheimer's disease. As explained by Professor Storey, the problem lies with the brain processing the visual image rather than with the reception of the image.

7. Neither Professor Storey nor Dr Williams attempted to quantify the applicant's visual defect so as to attract the third limb of the legislative criteria.

8. The applicant relied upon the decision of Deputy President Burns in Secretary, Department of Social Security and Oakey (AAT 9051, 13 October 1993). It is noted that this decision was handed down before changes to the legislation regarding the criteria for "permanently blind". The respondent Mr David Oakey suffered a visual defect, secondary to a severe head injury. The applicant in this case relied on the Royal Australian College of Ophthalmologist Guidelines, which are the same as those now included in s.95(1) Schedule 1B. Under the third limb of these guidelines, Mr Oakey's visual impairment secondary to his head injury was rated at 60% loss in each eye. On this basis Mr Oakey did not qualify for the blind disability support pension.

9. In this case no attempt has been made to quantify the visual loss secondary to occipital lobe atrophy. The Tribunal accepts the opinions of Dr Williams and Professor Storey that the applicant is functionally blind. However, she appears not to meet the strict legislative requirements and no attempt has been made to quantify the visual loss under the third limb of the criteria.

10. The Tribunal affirms the decision under review.

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 16 October 2002

Date of decision: 24 January 2003

Solicitor for the applicant: Mr J. Price, Garland Hawthorn Brahe

Advocate for the respondent: Ms P. D'Cunha, Centrelink advocate