Sharp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 79 (10 February 2011)

Last Updated: 11 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 79

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2928

GENERAL ADMINISTRATIVE DIVISION		)
	Re		BEN SHARP

Applicant

And

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

Respondent

DECISION

Tribunal

Dr P McDermott, RFD, Senior Member

Date 10 February 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

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

CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Applicant has physical, intellectual or psychiatric impairment – Impairment rating of applicant not 20 points or more under Impairment Tables – Decision under review affirmed

Social Security Act 1991 (Cth) s 94, Schedule 1B
Social Security (Administration) Act 1999 (Cth) Schedule 2 cl 4(1)

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

REASONS FOR DECISION

10 February 2011

Dr P McDermott, RFD, Senior Member

INTRODUCTION

1. Mr Ben Sharp (the applicant) has made a claim for disability support pension. I have to decide whether he is entitled to receive that benefit. In making a decision about his eligibility for that benefit, I have to examine whether the applicant had medical conditions which impaired his ability to work at the date of his claim or within a period of 13 weeks following the date of his claim[1].

PRIOR DECISIONS

2. On 9 December 2009, Centrelink made a decision that the applicant was not qualified to receive disability support pension. On 27 April 2010, this decision was affirmed by an authorised review officer.
3. On 18 June 2010, the Social Security Appeals Tribunal affirmed the decision of Centrelink that the applicant was not qualified to receive disability support pension.
4. On 14 July 2010, the applicant made an application for review to this Tribunal.

ELIGIBILITY CRITERIA

5. The entitlement to a disability support pension is conferred by s 94(1) of the Social Security Act 1991 (Cth) (“the Act”).
6. A person is qualified for a disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment[2] ;

(b) the person’s impairment is of 20 points or more under the Impairment Tables[3]; and

(c) the person has a continuing inability to work.[4]

All of these requirements must be satisfied before a person is entitled to a disability support pension.

7. In considering whether the applicant had a “continuing inability to work”, I must have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent a person from doing any work or training within the next 2 years. The term “work” is defined to be work of at least 15 hours per week at or above the relevant minimum wage and existing in Australia, even if that work is not in the person’s locally accessible labour market.[5] In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act.
8. I should mention that the applicant satisfies the other requirements of s 94. He is over the age of 16 years[6] and he is an Australian resident[7].

IMPAIRMENT TABLES

9. The Impairment Tables which I am required to apply are in Schedule 1B of the Act.
10. It is also necessary for me to have regard to the Introduction to the Impairment Tables.
11. Paragraph 2 of the Introduction to the Impairment Tables provides that the Tables “are designed to assess impairment in relation to work”.
12. Paragraph 4 of the Introduction to the Impairment Tables provides that “a rating is only to be assigned after a comprehensive history and examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.[8]
13. Paragraph 5 of the Introduction to the Impairment Tables states that a condition “must be considered to be permanent”. That paragraph states that “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.”[9] The paragraph concludes with a statement that “a condition will be considered to be fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years”.[10]
14. Paragraph 6 of the Introduction to the Impairment Tables states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider “what treatment or rehabilitation has occurred, whether any treatment is still continuing or is planned in the near future and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years”.[11]
15. In considering this application I have come to the conclusion that the applicant should be assessed under Table 10 (Intellectual Disability).

TIME FOR DETERMINING ELIBILITY

16. For the applicant to be qualified to receive disability support pension, he must meet the eligibility criteria on the date of his claim, 22 October 2009, or within 13 weeks of the date of his claim[12]. I appreciate that the applicant will make another claim for disability support pension. However, in considering this application I am confined to considering the eligibility of the applicant in this 13 week period.

BACKGROUND OF APPLICANT

17. The applicant made a claim for disability support pension. The only medical condition that was listed on his claim form for that benefit was asthma. The application was made on the suggestion of Mr Hugh Trowbridge, a placement officer at an employment service, who also represented the applicant. Mr Trowbridge informed the Tribunal that if the applicant is eligible to receive disability support pension then he could be part of the supported wages system. He considered that if the applicant is part of the supported wages system then he could be employed on a lesser wage.
18. The applicant gave evidence before me. He confirmed that he is capable of cycling for long distances. He also confirmed that he has made applications to work with a number of potential employers but has been unsuccessful in obtaining long-term employment. Mr Hugh Trowbridge, who represented the applicant at the hearing of this application, has assisted the applicant in work trials.
19. The applicant stated he undertook a trial of work collecting trolleys at a shopping centre. Contemporaneous case notes indicated that the applicant found the work to be too hard[13], although the applicant stated that he was able to do such work in trials.
20. The applicant also gave evidence of his unsatisfactory educational experiences. He was unable to complete his secondary education having experienced bullying at a Gold Coast high school and at TAFE. The applicant gave evidence that he has some learning potential, and also mentioned that at school he had an aptitude for mathematics.
21. The applicant stated that he presently spends a great deal of his time in computer activities and that he wakes up late.

TREATING DOCTOR’S REPORT

22. Centrelink was provided with a Treating Doctor’s Report dated 10 November 2009 from Dr K Young[14]. Dr Young reports that the applicant has symptoms of “learning difficulties, memory difficulties, slow to perform tasks”.[15] Dr Young stated that the applicant was not on any medication and a support worker was the only treatment planned for the applicant. Dr Young stated that the condition would affect his ability to function for more than 24 months and over that period the condition was expected to remain unchanged. Dr Young also stated that the asthma condition had a limited effect on the functioning of the applicant.

MEDICAL SPECIALIST REPORTS

23. Dr Ashar Khan, a Consultant Psychiatrist, made a report on 7 September 2010[16]. In that report, Dr Khan did not find any evidence of Axis 1 Illness Comorbidity. Dr Khan also reported that he requested an electroencephalogram (EEG) to rule out the presence of epileptogenic activity. The report of Dr Khan did not disclose the result of the EEG test, but the applicant himself confirmed that no disorder was found.
24. In his report, Dr Khan also reported that he had given the applicant an ADHD Questionnaire as well as an Autism Spectrum Rating Scales (ASRS) form to fill out with assistance. The report did not comment upon the ADHD Questionnaire and the ASRS.

WORK CAPACITY ASSESSMENT REPORTS

25. On 17 April 2009, a Job Capacity Assessment Report was completed[17], with a clinical assessment by Mr Clinton Schultz, an intern psychologist, and Ms Mary-Ann Barford, a senior psychologist.[18] The results of that assessment were that the applicant had a full scale IQ of 91 which placed him within the average range of IQs.[19] This assessment was made using the Wechsler Adult Intelligence Scale, Version 3 (WAIS-III). The scores on subtests of the WAIS-III suggest that the applicant has difficulty with verbal tasks, working memory and visual processing ability. Mr Schultz recommended that the applicant utilise learning strategies (such as writing notes) to assist his functioning. Certainly the applicant stated that he had difficulty in remembering appointments. However, the applicant does not appear to have adopted that advice. The Job Capacity Assessment Report also identified some difficulties with spelling and arithmetic that are not consistent with the level of education of the applicant. This is also not consistent with the statement of the applicant that he was good at mathematics at school. The evidence before me gives no explanation of why the spelling and arithmetic of the applicant is not consistent with his level of education.
26. On 25 October 2010, a Job Capacity Assessment Report was completed with an assessment by Ms Claire Mulcahy.[20] In giving evidence before me, Ms Mulcahy stated that since 2003 she has been a registered psychologist. Ms Mulcahy has, in my view, prepared a comprehensive report in which she has endeavoured to investigate the learning difficulties of the applicant (who was still awaiting glasses to correct his vision). I have accepted the Job Capacity Assessment of Ms Mulcahy that the applicant has a future work capacity of up to 22 hours per week within 2 years. That assessment was not challenged by the applicant.
27. I should state that I regard the report of Ms Mulcahy as being a comprehensive document in which she has examined all available records relating to the applicant. Despite the applicant stating at an interview that he had not received any intervention, Ms Mulcahy has located an assessment that was undertaken when the applicant was eight years of age.

OCCUPATIONAL THERAPY REPORT

28. On 5 March 2010, a report was completed by Ms Felicity Fay, a Mental Health Occupational Therapist.[21] In that report, Ms Fay recommended that the applicant be given a disability support pension, but did not provide reasons in support of the recommendation. She did provide the results of some tests. She stated that the applicant’s functional cognition levels were assessed as 5.4 on a scale of 1 to 6. On a NUCOG test for cognitive assessment, she assessed the applicant as scoring 80.5 out of 100, where the cut off for a marked deficit was stated to be 70.[22] In a letter dated 24 August 2010, Ms Fay again recommended that the applicant be given disability support pension.[23] The reason for her recommendation was not to disadvantage the applicant who was, in her opinion, unable to maintain mainstream employment. Ms Fay, quite properly, stated that she was not a registered psychologist or medically qualified. However, I recognise that Ms Fay has made some valuable recommendations to assist the applicant. I consider that Ms Fay is correct in recognising that the applicant has to “enhance his social goals and mental health through meaningful activity”.[24] Ms Fay also recommended some woodwork courses.[25] There is no evidence before me that these suggestions of Ms Fay have been adopted by the applicant.

CONSIDERATION

29. At the beginning of the hearing, I raised with the applicant and his representative that the evidence before me disclosed that the applicant appeared not to have availed himself of available employment opportunities. For instance, I mentioned that there is a suggestion that the applicant does not want to do “boring, repetitive work”. The applicant has stated that he prefers to work in the afternoons: this is consistent with his evidence in which he mentioned that he plays computer games in the evening. Despite the fact that the applicant has engaged in long-distance cycling, he was not interested in a warehouse job at Labrador although he lives on the Gold Coast.[26] The applicant also stated that he does not regard working in a warehouse as a “proper job”. Despite the fact that I raised such matters, the applicant did not challenge that he made such comments or provide me with any explanation of his conduct. I consider that there is some validity to the observations of Ms Mulcahy that the applicant does not “maintain enthusiasm” [27] for employment.
30. Another matter of concern is the fact that the applicant has increased his consumption of alcohol.[28] The alcohol consumption of the applicant has not been mentioned in any of the medical reports before me, and I am consequently unaware of whether his use of alcohol has influenced any test results. The applicant does not appear to have received any intervention to prevent alcohol abuse. I certainly consider that it is important for all available assistance to be accorded to the applicant to prevent him from engaging in any alcohol abuse.
31. The respondent, quite properly, has accepted that the applicant does have a ‘physical, intellectual or psychiatric impairment’ for the purposes of the Act.[29] A learning disability can be regarded as an impairment, as the applicant does have difficulties with working memory and processing speed. Although the applicant has contended that he has a head injury, there is no medical evidence before me that the applicant is impaired because of a head injury. Certainly, Dr Khan in his initial report did not provide evidence of any such injury.
32. Another impairment of the applicant is his asthma condition. However, there is no issue that this condition is controlled and therefore it cannot be assigned a rating under Table 21. His asthma condition certainly does not prevent the applicant from cycling for some distance.
33. I must next consider whether the learning disability of the applicant warrants him being assigned an impairment rating of 20 points or more under the Impairment Tables[30] and whether he has a continuing inability to work[31].
34. I have already mentioned that paragraph 4 of the Introduction to the Impairment Tables states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.[32] I accept the conclusion of Ms Mulcahy that the condition can now be regarded as being fully diagnosed, treated and stabilised.[33] She has examined all available records that relate to the applicant and, for that reason, I consider that his condition has been fully investigated. In these reasons I later mention that there is no suggestion that his condition requires any neurological investigation.
35. There was no issue before me that the appropriate Table to assess the condition of the applicant is Table 10 (Intellectual Disability). The introductory words to Table 10 contain the direction: “This Table is only to be used for intellectual disability”.
36. I have given some consideration as to whether it is appropriate to assess the applicant under Table 8. Certainly, if there was evidence of an acquired brain injury then it would have been appropriate to assess the impairment of the applicant under both Table 8 and Table 6: however, there is no evidence of any brain injury, despite the assertions of the applicant.
37. There is also no medical evidence before me of any impairment of “higher neurological functions” as mentioned in Table 8. One issue that was raised before me was loss of memory and I appreciate that there is some impairment of his memory. However, on the working memory index the applicant was assessed by both Mr Schultz and Ms Barford as being on the borderline test.[34] On the NUCOG test for cognitive assessment that was administered by Ms Fay, the applicant achieved a much higher score than that required for a marked deficit. In these circumstances, I do not consider that there is evidence of such an impairment of cognitive function which would warrant the use of Table 8. Table 8 is certainly appropriate where there is evidence of impairment of neurological function.[35] A neurologist, specialist physician or a neurophysiologist is mentioned in Table 8 as being able to provide a report to assess impairment of neurological function. There is no such specialist evidence before me. In his report, Dr Khan certainly did not suggest that the applicant has any neurological impairment, or that he needed to be referred to a neurologist.
38. In assigning a rating under Table 10 it is necessary to assess three key criteria, namely “IQ, using the Wechsler Adult Intelligence Scale (Revised WAIS-R), and two areas of social functioning: adaptive behaviour and capacity for independent living”.[36] A claimant is given a score for each and then the three scores are added. For the normal range of IQ, which the applicant has, the claimant is given a score of 0. For this component, a score is only given where a claimant has an IQ of 79 or under.[37] In considering the component of adaptive behaviour a claimant can be given a score where there is evidence of “moderate to severe behavioural problems” and there is no evidence of such problems. In considering the component of capacity for independent living, a claimant who is “self-sufficient” attracts a score of 0. A score is only given where a claimant “[n]eeds supervision of daily activities and routine financial transactions, e.g. needs to be reminded to perform routine tasks/personal care”.[38] I have had regard to the report of Ms Felicity Fay which was provided by the applicant. Ms Fay indicates that there is “independence in daily care”.[39] Having regard to that conclusion I consider that I should not assign a score for that component. The fact that Ms Fay considers that there is “some assistance needed with finances, decision-making and organisational skills” does not of itself enable the claimant to be given a score for the independent living score component. In the circumstances the applicant should be assigned a rating of nil under Table 10.

CONTINUING INABILITY TO WORK

39. As I have concluded that the applicant cannot be assigned a total of 20 points under the Impairment Tables, it is not strictly necessary for me to determine whether he has a continuing inability to work. However, I feel that it is appropriate for me to consider the application of s 94(2) of the Act.
40. In order for the Secretary to conclude that a person has an inability to work because of an impairment it is necessary that the criteria in both s 94(2)(a) and s 94 (2)(b) be met. This is indicated by the presence of the distributive word “and” in s 94(2).
41. In Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444 (“Pusnjak”) Drummond J made reference to the explanatory memorandum of the amendment which is now s 94(2)(a) of the Act. His Honour, at paragraph 32, formulated the test that I must now consider:

“As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from doing work anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?”

42. In considering the application of s 94(2)(a) which refers to ‘work’, I must refer to the definition of “work” in s 94(5) of the Act which refers to work for at least 15 hours per week. I have relied upon the material before me which shows that the applicant was engaged on the trolley collection work trial for four days in one week. This work capacity certainly exceeds 5 hours of work per week. This work capacity accords with the assessment of Ms Claire Mulcahy who on 25 October 2010 assessed the applicant as having a work capacity in the open market of, at least, 15 – 22 hours per week.[40]
43. I now turn to s 94(2)(b) of the Act. I mention that for a claimant to be successful it is necessary for the claimant to satisfy either s 94(2)(b)(i) or s 94(2)(b)(ii) of the Act.
44. In Pusnjak Drummond J, at paragraph 32, formulated the test under s 94(2)(b)(i) of the Act. His Honour remarked:

As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next 2 years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?

45. There is no evidence before me that the impairments of the applicant are of themselves sufficient to prevent him from undertaking educational or vocational training or on-the-job training during the next two years in the terms of s 94(2)(b)(i) of the Act.
46. I have also considered the application of s 94(2)(b)(ii) of the Act. In Pusnjak Drummond J, also at paragraph 32, formulated the test under that provision:

As to s 94(2)(b)(ii): If there is available training of a kind capable of fitting the claimant within a 2-year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?

47. His Honour remarked that an affirmative answer to this question would mean that “the applicant will not be eligible for the pension”.[41]
48. I have accepted the Job Capacity Assessment of Ms Mulcahy that the applicant has a future work capacity of up to 22 hours per week within 2 years. The assessment of Ms Mulcahy was not challenged by the applicant or contradicted by any evidence. The applicant himself in his claim form for disability support pension indicated that he could then do any activities that would help prepare him for work[42]. I therefore consider that the applicant does not satisfy the test in s 94(2)(b)(ii) of the Act.
49. I appreciate that the applicant appears to only want employment near his home and has declined offers of employment in other locations on the Gold Coast. However, the Act provides that I cannot have regard to the availability to him of work in his locally accessible labour market[43].
50. Having regard to all of the evidence before me I have come to the conclusion that the applicant is not entitled to disability support pension. However, I would hope that Mr Trowbridge continues to provide his valuable support to the applicant. I would also recommend that Centrelink endeavour to provide additional support to the applicant in the form of a social worker, to explore whether the applicant requires assistance to deal with any difficulties with alcohol and whether is possible to assist him to further his education. The applicant does not have the support of his father and step-father and is a person who certainly needs assistance. He is an articulate individual with the potential to contribute to society.

DECISION

51. I affirm the decision under review.
    

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

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

Danielle Armstrong, Research Associate

Date/s of Hearing 14 December 2010

Date of Decision 10 February 2011

The Applicant was represented by Hugh Trowbridge

Solicitor for the Respondent was Karen Hamilton, Departmental Advocate

---

[1] Social Security (Administration) Act 1999 (Cth) Schedule 2, cl 4.
[2] Social Security Act 1991 (Cth) s 94(1)(a).
[3] Social Security Act 1991 (Cth) s 94(1)(b).
[4] Social Security Act 1991 (Cth) s 94(1)(c).
[5] Social Security Act 1991 (Cth) s 94(5)(a) – (b).
[6] Social Security Act 1991 (Cth) s 94(1)(d).
[7] Social Security Act 1991 (Cth) s 94(1)(e)(i).
[8] Social Security Act 1991 (Cth) Schedule 1B, paragraph 4.
[9] Social Security Act 1991 (Cth) Schedule 1B, paragraph 5.
[10] Social Security Act 1991 (Cth) Schedule 1B, paragraph 5.
[11] Social Security Act 1991 (Cth) Schedule 1B, paragraph 6.
[12] Social Security (Administration) Act 1999 (Cth) Schedule 2, cl 4.
[13] T-Document 18.
[14] T-Document 9.
[15] T-Document 9, Folio 66.
[16] Exhibit 6.
[17] T-Document 4.
[18] T-Document 5.
[19] T-Document 5, Folio 31.
[20] Exhibit 7.
[21] T-Document 15.
[22] T-Document 15, Folio 83.
[23] Exhibit 2.
[24] Exhibit 2.
[25] T-Document 15, Folio 85.
[26] T-Document 18, Folio 124.
[27] Exhibit 7 (Job Capacity Assessment Report), p 7.
[28] Exhibit 3.
[29] Social Security Act 1991 (Cth) s 94(1)(a).
[30] Social Security Act 1991 (Cth) s 94(1)(b).
[31] Social Security Act 1991 (Cth) s 94(1)(c).
[32] Social Security Act 1991 (Cth) Schedule 1B, paragraph 4.
[33] Exhibit 7 (Job Capacity Assessment Report), p 2.
[34] T-Document 5, Folio 33.
[35] Social Security Act 1991 (Cth) Schedule 1B, Table 8.
[36] Social Security Act 1991 (Cth) Schedule 1B, Table 10.
[37] Social Security Act 1991 (Cth) Schedule 1B, Table 10.
[38] Social Security Act 1991 (Cth)
[39] T-Document 15, Folio 83.
[40] Exhibit 7 (Job Capacity Assessment Report), p 6.
[41] Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444 at 452, [32].
[42] T-Document 6, Folio 49.
[43] Social Security Act 1991 (Cth) s 94(3)(b).