Dickinson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 2 (10 January 2011)

Last Updated: 10 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 2

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3301

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JULIE-ANNE DICKINSON

Applicant

And

SECRETARY, DEPARMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Senior Member Dr K S Levy RFD

Date 10 January 2011

Place Brisbane

Decision

The decision to deny the applicant disability support pension is affirmed.

.................[Sgd]......................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Newstart allowance – Disability Support Pension – Impairment Point assessment – Continuing inability to work – Decision under review affirmed.

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 13, sch 2

Crossland and Secretary, Department of Family and Community Services [2004] AATA 864

Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444

REASONS FOR DECISION

10 January 2011

Senior Member Dr K S Levy RFD

INTRODUCTION

1. The applicant, Julie-Ann Dickinson, suffers from a number of impairments. These are orthopaedic impairments, Asthma, Immunodeficiency, Hearing Loss and a Psychological/Psychiatric Disorder. She applied for recognition of these and acceptance of Disability Support Pension (DSP).
2. Her application was made via an enquiry with Centrelink on 14 January 2010 and followed up with a formal application dated 5 February 2010. She subsequently provided medical reports and other information requested. The claim was rejected on 25 March 2010. She requested reviews of the original decision and these were considered and rejected sequentially by the original decision maker, an authorised review officer and the Social Security Appeals Tribunal. On 5 August 2010, she lodged an appeal against these decisions with this Tribunal.

ISSUES

3. The questions to be determined by the Tribunal are:
   • (a) Has Ms Dickinson a permanent medical condition or conditions which have a rating of 20 points or more under the Impairment Tables?; and if so
   • (b) Does she have “a continuing inability to work?

THE EVIDENCE

4. Ms Dickinson has been receiving Newstart Allowance since 20 March 2008.
5. The earliest report of Dr Ng dated 1 August 2008 noted a right arm, shoulder and neck cluster condition which would persist for more than 24 months; and a knee and ankle complaint due to falls which were said not to be documented and which were expected by Dr Ng to also last for more than 24 months. He reported that how it might affect Ms Dickinson’s ability to function was regarded as “uncertain”[1]. A further letter dated 18 March 2010 noted back pain, knee pain, deafness and poor eyesight. Dr Ng further reported on 1 April 2010 that Ms Dickinson had pain in the back which was a degenerative condition and pain in the knee and ankles from falling off horses. These were conditions which would persist for up to 24 months. He noted reduced eyesight capacity and further stated her deafness, asthma and idiopathic thrombocytopenia had some impact.
6. A report from Psychologist Kristel Stillman dated 20 August 2008 noted her Asthma, Immunodeficiency and Hearing Impairment were permanent conditions but her upper and lower limb orthopaedic conditions were temporary, as was a psychiatric disorder. Her report which was based on medical reports and that of an audiologist resulted in a nil impairment rating.
7. Another report from a Job Capacity Assessor, Karen Northey was dated 17 March 2010 and found similarly to the Psychologist’s report, also concluding there was a nil rating under the Impairment Tables. Ms Northey gave oral evidence and told the Tribunal she had had some experience in providing such reports as a Job Capacity Assessor. She completed a second report dated 30 April 2010 because Ms Dickinson had disagreed with her earlier report. Ms Northey had contacted Dr Ng in the course of her second assessment and verified the back condition on this occasion. She then concluded that Ms Dickinson did not appear to be able “to endure a full work day and so a work capacity of 23–29 hours is more realistic at this time”[2].
8. In oral evidence before the Tribunal, Ms Dickinson said under cross examination that her eyesight had deteriorated although she agreed that the opinion of Dr Ng was that some conditions such as the left leg and right ankle conditions were expected to improve within 12–24 months.
9. Ms Dickinson became emotional during her cross examination and described how her 16 year old daughter comes around to Ms Dickinson’s house at 9pm in the evening and turns off her power and is often is violent towards her. She lives in fear and because of her poor eyesight which has deteriorated of recent times, she is vulnerable. She had to go to Court in December 2010 in relation to a Domestic Violence Order against her daughter.
10. Between 14 January 2010 and 15 April 2010, both dates inclusive, Ms Dickinson agreed the medical reports showed her vision did not attract an impairment rating, nor did her spinal condition, her shoulder condition was not considered fully treated and her hearing loss, at 21% loss, fell within the band of 0-24%. These resulted in a nil impairment rating.

CONSIDERATION

11. The evidence and the relevant legal provisions applicable to this application have been fully considered. In order to qualify for the DSP, s 94(1) of the Social Security Act 1991 (“the Act”) requires the applicant to meet the following criteria:
    • (a) have a physical, intellectual or psychiatric impairment;
    • (b) attract 20 points or more under the relevant Impairment Tables; and
    • (c) ...

(i) have a continuing inability to work.

12. It is undeniable that Ms Dickinson has a number of conditions that qualify as impairments: a sight problem, a hearing disability and a difficulty with the right hand. The right arm complaint was referred for further assessment during the period under review. It is apparent that this condition has resulted in some loss of capacity. The SSAT determined that Ms Dickinson was entitled to 5 impairment points for that condition. I agree with that assessment.
13. The assessment of Ms Dickinson’s application is restricted to the period 14 January 2010 to 15 April 2010[3]. In that period, the assessments presented seem to have been undertaken by appropriately qualified professionals who have some experience in making those assessments. There was evidence of some conditions not being “...a fully documented, diagnosed condition which has been investigated, treated and stabilised”[4].This is a requirement for assignment of an impairment rating using the Impairment Tables. There was no evidence that would enable me to dispute the views of the professionals who provided the reports or assessments. I accept those assessments as being accurate for the relevant assessment period for this appeal, that is, 14 January 2010 to 15 April 2010. I am not empowered to review the assessments for later periods under the legislation for the purposes of this application.
14. My review is concerned with the allocation of points for the various conditions claimed by Ms Dickinson. I am conscious of her assertions that some of her conditions have deteriorated since that period and it may be that this review does not reflect her present position. However, the legislation is specific and it relates only to the points to be awarded for the assessment period under the Impairment Tables and the applicant’s continuing inability to work.

How many points do the applicant’s conditions attract under the Impairment Tables?

15. As referred to above, the assessment for the purpose of this appeal is limited to the period14 January 2010 to 15 April 2010. I have indicated that a total of 5 points can be awarded for this period, this being for the right hand and forearm and consequential loss of grip and function. The evidence in relation to the other conditions either did not meet the criteria in the Impairment Tables to score an impairment rating; or were not fully investigated, treated and stabilised, thereby preventing an impairment rating being determined.
16. In making this assessment it was apparent that Ms Dickinson suffered some psychological distress and this had been alluded to by Ms Stillman, Psychologist. Her description of constantly living with threats of violence and harassment by her daughter are undoubtedly contributing to her psychological state and this may have some significant impact on her capacity to work or her other conditions. However, I cannot take this into account as no evidence of an expert referable to the relevant period was tendered and therefore, there is no evidence that this condition is fully diagnosed, treated and stabilised.
17. I therefore find that Ms Dickinson did not meet the minimum criterion of 20 impairment points in accordance with s 94(1)(b) of the Act.

Did the applicant have a continuing inability to work?

18. The requirements of s 94(1) are cumulative and therefore, as I have found s 94(1)(b) has not been satisfied, the application cannot succeed. Consideration of this element is strictly speaking, not required. However, for completeness, it is noted briefly that to demonstrate a continuing inability to work, Ms Dickinson’s incapacities must be directly related to that inability to work[5].
19. In particular, the availability of a person for work or training, and the opportunities in a local labour market are to be disregarded[6]. Other personal preferences or idiosyncrasies of an applicant or a potential employer are also to be disregarded. These requirements are clearly intended to increase the objectivity of assessments. The respondent has submitted the objective of this Australian Government initiative in 2006 was to increase workforce participation by those on welfare. The introduction of Job Capacity Assessors provides a more comprehensive assessment based on a person’s primary impairment and contributes to meeting the objectives of the legislation.
20. It is apparent that, despite the possible exacerbation of Ms Dickinson’s conditions since the period of assessment and the possibility of an undiagnosed psychological condition, the reports of Dr Ng, Ms Stillman and Ms Northey are the only evidence of the applicant’s conditions during the assessment period. Those reports have been taken into account by the Job Capacity Assessor who has concluded that Ms Dickinson was capable of working between 15–22 hours per week, with or without intervention during the assessment period.
21. The question for the Tribunal is whether I can be satisfied that the applicant has a continuing inability to work within the meaning of s 94(1)(c) as elaborated upon in s 94(2) of the Act. I accept Ms Dickinson is distressed in a significant way and has physical impairments, which may now be more severe than during the period of assessment. Nevertheless, during the relevant period of assessment, the evidence does not show she had a continuing inability to work.

CONCLUSION

22. The decision to deny the applicant disability support pension is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: ...................[Sgd]....................................................

Alex Seagar, Research Associate

Date/s of Hearing 24 November 2010

Date of Decision 10 January 2011

Applicant was self-represented

Solicitor for the Respondent Ms Jasmine Forsyth, Departmental

Advocate

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[1] Folio 56 of the T-documents
[2] Folio 86 of the T-documents
[3] See s 13(2) and Schedule 2 of the Social Security (Administration) Act 1999 (Cth)
[4] Paragraph 4 of the Introduction, Schedule 1B to the Social Security Act 1991 (Cth)
[5] Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444 at 452; and Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
[6] See s 94(3) of the Act