Takai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 649 (16 September 2011)

Last Updated: 16 September 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 649

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/2034

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SENISI TAKAI

Applicant

And

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

Respondent

DECISION

Tribunal

Mr R G Kenny, Senior Member

Date 16 September 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

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

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Disability support pension – New Zealand citizen – Application of Agreement on Social Security between the Governments of Australia and New Zealand (the Agreement) – Relevant time-frame – Physical impairment from gout - Impairment rating attributable to gout totalling less than 20 points under Schedule 1B – Impairment from dental pain temporary with no impairment rating – Tendinopathy left hand, and carpal tunnel syndrome pending specialist review for treatment - Tendinopathy left hand and carpal tunnel syndrome not fully treated and stabilised – No allocation of impairment rating for tendinopathy left hand or carpal tunnel syndrome – Capacity to work for at least 8 hours per week in light duties – Applicant not severely disabled for the purposes of the Agreement – Applicant not qualified for disability support pension – Decision under review affirmed

Social Security Act 1991 (Cth) ss 7, 94, Schedule 1B

Social Security (Administration) Act 1999 (Cth) s 3, Schedule 2

Social Security (International Agreements) Act 1999 (Cth) ss 4, 6, Schedule 3

REASONS FOR DECISION

16 September 2011

Mr R G Kenny, Senior Member

BACKGROUND

1. On 26 October 2010, Senisi Takai lodged a claim with Centrelink for disability support pension. Centrelink rejected the claim on 18 November 2010. On 7 January 2011, an authorised review officer affirmed the decision, as did the Social Security Appeals Tribunal (SSAT) on 11 May 2011.

LEGISLATION AND ISSUES

2. It is common ground that Mr Takai is a New Zealand citizen and that his claim must be determined in accordance with the Acts which comprise the social security law. These are the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act) and the Social Security (International Agreements) Act 1999 (Cth) (the IA Act).^[1]
3. For claims under the Act and the Administration Act, the qualification criteria for the receipt of disability support pension are set out in s 94 of the Act. The person must satisfy an age requirement, which is not in dispute, as well as:
   • have a physical, intellectual or psychiatric impairment (s 94(1)(a)); and
   • have an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act (s 94(1)(b)); and
   • have a continuing inability to work (s 94(1)(c)); and
   • be an Australian resident (s 94(1)(e)).
4. All of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks after the date of the claim.^[2] This is from 26 October 2010 to 26 January 2011 (the relevant period).
5. In accordance with s 7(2) of the Act, an “Australian resident” is a person who resides in Australia, and is one of the following:

(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.

6. It is not disputed that Mr Takai does not have Australian citizenship, hold a permanent visa^[3] or that, as a New Zealand citizen, he is special category visa (SCV) holder. However, Mr Takai is only a protected SCV holder if he meets the requirements of ss 7(2A) to 7(2G) of the Act. In Mr Takai’s case, the effect of those provisions is that he will be a protected SCV holder only if he was in Australia on 26 February 2001. It is common ground that Mr Takai was in Australia for a period during the 1980s, from 18 July 1997 until 12 August 1997, from 2 August 2003 until 29 May 2004, from 16 July 2004 until 2 February 2009 and from 10 February 2009. Accordingly, it is not disputed that Mr Takai was absent from Australia on 26 February 2001, that he is not a protected SCV holder or that he does not satisfy the residency requirement of s 94 of the Act.
7. While Mr Takai does not satisfy the residency requirements of s 7 and s 94 of the Act, he will still qualify for the disability support pension if he meets the other requirements in s 94 of the Act and those of the International Agreement provided for in the IA Act, which overrides the general provisions of social security law.^[4] The IA Act requires that, instead of the test for assessing whether Mr Takai has a continuing inability to work under s 94(1)(c) of the Act, he will qualify for the disability support pension only if he is “severely disabled”. That term, in so far as relevant to Mr Takai, reads^[5]:

1. In this Agreement unless the context otherwise requires:

(l) “severely disabled” means a person who:

(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa) to work for at least the next 2 years; and
(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(ii) ... ;

8. The issues for determination are whether Mr Takai suffers from an impairment; whether such impairment is at least 20 points under the Impairment Tables in Schedule 1B of the Act; and whether he is severely disabled within the meaning of the IA Act.

SUBMISSIONS

9. In his claim form, Mr Takai referred to continuing problems associated with a work-related injury to his left hand. This has resulted in numbness to his thumb and reduced capacity to use his left hand. He suffers periodic pain from gout and was noted to have dental pain when assessed by psychologist Greg McQueen, who completed a Job Capacity Assessment Report on 12 November 2010. Mr Takai has also been diagnosed with carpal tunnel syndrome. Mr Takai submitted that his left hand made it impossible to obtain employment and that he should be granted the disability support pension.

10. For the respondent, Mr Rick McQuinlan submitted that the medical evidence and Mr McQueen’s report were not consistent with the allocation of an impairment rating of 20 points under Schedule 1B of the Act during the relevant period. This was in respect of his left hand condition, carpal tunnel syndrome, gout and dental pain. Mr McQuinlan advised that the respondent’s approach to the issue of whether Mr Takai was severely disabled was whether he had an inability to undertake employment for 8 hours or more per week.^[6] He submitted that, based on those conditions for which an impairment rating may be given, Mr McQueen’s report demonstrated that Mr Takai had a work capacity of 8 to 14 hours per week in the relevant period. Accordingly, he submitted that Mr Takai did not satisfy the requirements of s 94 of the Act and he was not qualified for the disability support pension.

EVIDENCE

11. Mr McQueen’s report identified Mr Takai’s medical conditions as gout, left thumb tendinopathy and dental pain. He described gout as a permanent condition which is fully diagnosed, stabilised and treated with medication. In relation to Mr Takai’s left hand, he noted that he underwent surgery in 2006 but that he was continuing to experience pain and stiffness. He identified the prospect of further surgery and wrote that the prognosis for the condition was uncertain. He considered that the condition was not fully diagnosed, treated or stabilised. Mr McQueen anticipated that Mr Takai would experience significant improvement with his dental pain. Mr McQueen recommended an impairment rating of 5 points for gout under Table 21 of Schedule 1B but no impairment ratings for the other conditions.
12. Mr McQueen also assessed Mr Takai’s capacity to work. He described a temporary work capacity of 8 to 14 hours per week but a baseline work capacity of 15 to 22 hours per week in moderate less-skilled activities. He considered that this would increase to 30 hours per week within two years without intervention.
13. Dr Sam Ioannidis completed a report on 9 December 2010. He wrote that Mr Takai experienced severe left hand pain associated with sensory loss. He also noted that Mr Takai was on a waiting list to see an orthopaedic surgeon and a hand therapist specialist at the Princess Alexandra Hospital.
14. Mr Takai’s treating doctor, Dr Finau Kaitu’u, completed a report on 24 March 2011. He described Mr Takai’s gout as having a nil impact on his function. For his left hand tendonopathy, Dr Kaitu’u described weakness in the thumb, no current treatment and no planned further treatment. He described Mr Takai as having difficulties with performing duties and in self-care. Dr Kaitu’u also identified Mr Takai as suffering from carpal tunnel syndrome in the left arm which was gradually worsening and being treated with medication, with the prospect of future surgical intervention.
15. Occupational therapist Joy Hanna completed a report on 2 August 2011. She noted that Mr Takai continued to report pain in his left hand, carpal tunnel syndrome and gout. Ms Hanna reported that Mr Takai does not utilise his left hand and that he “continues to experience significant physical, reported psychological and functional defects as a result of his left hand injury and secondary carpal tunnel” of the left hand.
16. In his evidence, Mr Takai confirmed that he was in New Zealand on 26 October 2001. He also confirmed that he was still waiting upon a referral to the Princess Alexandra Hospital in relation to his left hand. He described his gout as intermittent, with occurrences twice monthly and a varying duration of hours to days. He stated that dental treatment has resolved his dental pain. He also said that he has not worked full-time since he injured his hand in 2004 apart from working one week in an abattoir position in 2009. He ceased this employment because of his hand condition.

CONSIDERATION

17. Schedule 1B of the Act has an Introduction which provides guidance in the application of the various Tables which it contains. Part of that Introduction reads:
    4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised...
    5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
    6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years ...

18. Under Table 21 of Schedule 1B of the Act, gout is assessed by reference to severity and duration of symptoms. I am satisfied that these are at “level 3” and “prolonged”, respectively. These equate with the grading code of “F” which, with the frequency described by Mr Takai, leads to an assignment of 5 points. That impairment rating is in accordance with Mr McQueen’s assessment.
19. There would seem to be some overlap in the symptoms referable to Mr Takai’s left hand tendinopathy and his carpal tunnel syndrome. Dr Kaitu’u advised that no further treatment was required for Mr Takai’s left hand but that he was awaiting surgery for his carpal tunnel syndrome. That is not in accordance with Mr Takai’s evidence, or the opinion of Dr Ioannidis, that he was awaiting further surgical and pain management intervention for his left hand. The report of Dr Kaitu’u is outside the relevant period and I note Mr McQueen’s reference to further treatment for the left hand in his report in November 2010. I am satisfied that Mr Takai’s left hand tendinopathy was not fully treated or stabilised in the relevant period and accept as correct the recommendation of Mr McQueen that no impairment rating may be allocated to it. I am also satisfied to that effect in relation to Mr Takai’s carpal tunnel syndrome.
20. I am satisfied, on Mr Takai’s evidence, that no impairment rating is applicable for the dental pain described by Mr McQueen.
21. A necessary requirement in s 94(1)(b) of the Act is that Mr Takai’s physical impairment must equate to 20 points or more under the relevant Tables. The effect of allocating an impairment rating of 5 points means that s 94(1)(b) of the Act is not satisfied during the relevant period.
22. In relation to work capacity in the relevant period, Mr McQueen assessed Mr Takai as being able to undertake 8 to 14 hours work per week on a temporary basis and with an increase to at least 15 hours per week subsequently. I am satisfied that Mr Takai does not meet the requirement that he be severely disabled during the relevant period.
23. I am satisfied that, in the relevant period, Mr Takai does not meet the qualifying criteria for payment of the disability support pension.

DECISION

24. The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

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

Danielle Armstrong, Research Associate

Date/s of Hearing 6 September 2011

Date of Decision 16 September 2011

The Applicant was assisted by an interpreter in the Tongan language.

For the Respondent Mr R McQuinlan, departmental advocate

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^[1] See s 3 of the Administration Act and s 4 of the IA Act.
^[2] See Schedule 2, cl 3 and cl 4 of the Administration Act.
^[3] Mr Takai holds a visa type 444.
^[4] See s 6 of the IA Act.
^[5] See cl1(l), Article 1, Part 1 of Schedule 3 of the IA Act.

^[6] See Guide to Social Security Law 1.1.S.110 Severely disabled (DSP), 10.2 Agreement with New Zealand and 10.2.100 New Zealand Glossary. 1.1.S.110 reads:

A recipient is accepted as being severely disabled if their impairment prevents them from:

• doing any work for 8 hours a week or more for the next 2 years, and
• benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours a week.

Note: Recipients who have been accepted as having a manifest inability to work are not necessarily severely disabled. The critical matter is the severity of the condition.