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The Tribunal has strictly enforced the program of support requirement to date, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act and that it is irrelevant whether an Applicant was aware of the requirement or not: Kumar v Secretary, Department of Social Services [2017] FCA 158 at [46].
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It is irrelevant that Centrelink did not advise the applicant about the program of support requirements or refer the application to a program provider (Re Byron and SDSS [2017] AATA 1536) or that the applicant’s treating doctor recommended against it: Re Manasse and SDSS [2017] AATA 1461.
In Re Kara and SDSS [2020] AATA 393, the Tribunal pointed out that in some circumstances it is not possible for an application to satisfy s 92(2).
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In this case the applicant had been in receipt of DSP since 1993 with the exception of short periods where it had been cancelled because she was overseas.
The applicant’s pension was cancelled in August 2016 when she took another overseas trip.
In December 2016 the applicant had returned to Australia and applied for the restoration of her pension.
The Secretary rejected the claim on the basis that the applicant had not undertaken a POS in the three-year period prior to December 2016.
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The applicant argued that it was not possible for her to have undertaken a POS in the prescribed three years period because she was already receiving the DSP in this period, with the exception of short periods while overseas, and hence was not eligible to participate in a POS.
She was also physically incapable of doing so.
The Tribunal described what it identified as a ‘Catch 22’ applying to the applicant.
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She was not eligible for a DSP unless she had completed the POS requirements in the prescribed period; but she could not complete these POS requirements because in the prescribed period she was already receiving a DSP.
The Tribunal queried whether a discretion existed under s 94B to waive the POS requirements in cases such as this.
The matter was remitted to the Secretary to review the application of the POS requirements to the applicant’s case.
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Program of support for less than 18 months Section 5(3) of the 2011 Determination and s 7(3) of the 2014 Determination provide (in similar terms) that the program can be of less than 18 months duration if the applicant completes the program.
In Re SDSS and Marwood [2014] AATA 686, the applicant was undertaking a rehabilitation program with his workers compensation insurer when his workers compensation claim was settled by a redemption.
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The redemption brought the rehabilitation program to an end in less than 18 months.
The applicant argued that he had completed the program for the purposes of s 5(3) of the Determination.
The Tribunal held that the program had no fixed duration and its termination with the redemption did not constitute completion of the program.
In Re SDSS and Giles [2014] AATA 685, the applicant underwent a one-to-one training program of less than 18 months duration.
She completed this program.
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She completed this program.
There was an option to seek follow up Page 15 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 support from the trainers at the instigation of the applicant, of which the applicant did not avail herself.
The Secretary took the view that the option of follow up support was part of the program and so the applicant had not completed the program.
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As the one-to-one phase of the program had been for less than 18 months, the applicant did not satisfy para 5(3) of the Determination.
The Tribunal held that the program was only the one-to-one phase and did not include the optional follow up.
Accordingly the applicant had completed the program.
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Early termination of a program of support Section 7(4) of the 2014 Determination and its 2011 equivalent provide that a person has actively participated in a program of support if the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
The construction of section 7(4) was considered in Re O’Cass and SDSS [2016] AATA 876: 106.
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For s 7(4) to apply, both limbs set out in ss 7(4)(a) and (b) must be satisfied.
It must be established by evidence that the program of support was ‘terminated before the end of the relevant period’ because ‘the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program’.
107.
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107.
The process by which a program of support may properly be taken to be ‘terminated’ for the purposes of s 7(4) is a matter for consideration.
In the usual course, a decision to that effect would be expected, and evidence that the decision was communicated to the person would reasonably be looked for.
108.
To my mind it does not follow, and it should not be assumed, that this is the only means by which a program of support might be ‘terminated’.
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In some circumstances, a program that has ceased to operate and has lapsed may be taken to have been terminated.
By definition, when something is ‘terminated’, it is brought or put to an end or ceased with finality.
This is to be distinguished from a program that is held over or suspended, deferred or postponed, such that it has ceased from operation for a time, or it has been temporarily brought to a stop or stayed for a time.
109.
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109.
There is a point at which a program may be taken to have been ‘terminated’ if the person to whom it applies is under suspension and the program is no longer in existence or has come to an end.
This may occur in circumstances where the suspension of the person is, in effect, final, or where the particular program has ceased operating or it is taken to have been brought to an end with finality in the particular circumstances.
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For example, if the program lies dormant, without action being taken to resume it, and without any confirmation of the continuing status of the program in communications between the person, the service provider and Centrelink over an extended period, these factors may be sufficient to treat the program as one that has come to an end and has been effectively ‘terminated’.
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It is not difficult to conceive of circumstances where this might arise, in the case of a program that ceases to operate, ends or lapses for some reason while the person to whom it applies is under indefinite, ongoing suspension from taking part in the program, where there is no arrangement for periodic review and no reasonable prospect that the person will be capable of resuming the program.
110.
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110.
Thus, where a program of support is suspended without limit, and no action is taken within a reasonable time to reactivate the program or to confirm the continuing status of the program, or the continuing effect of the suspension of the person’s requirement to undertake the program, in the particular circumstances, the program may be taken to have been ‘terminated’ for the purposes of s 7(4) of the Participation Determination.
111.
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While suspension of a person from a program of support is not synonymous with termination of the program for the purposes of s 7(4), a careful examination of the facts is necessary to determine whether the program continues to operate or to exist in any meaningful form in circumstances where the person’s suspension has been in place for a long time and is ongoing, with indefinite effect, and without arrangement for periodic review of the person’s capabilities and the suitability and the enduring status of the program.
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If it is found that a program of support was terminated in such circumstances, the next step is to determine the reasons for the termination and whether the terms of s 7(4)(b) are satisfied.
These are matters for evidence.
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Page 16 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Requirement for an "improvement" in capacity for employment Section 5(5)(b) of the 2011 Determination and s 7(5) of the 2014 Determination are directed to persons whose participation in a Program has not resulted in an improvement in their capacity for employment and provides that such people remain eligible for DSP only if it is solely the impairment that has prevented this improvement.
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In Re O’Gorman-Watson and SDSS [2014] AATA 277, the applicant suffered MS which was deteriorating.
Her participation in a Program had not led to any improvement in her capacity for employment and the Secretary discontinued her DSP.
The Tribunal found that the Program was not properly designed or helpful to the applicant and that her lack of improvement in work capacity from the program was solely due to her MS. See Re Clements and SDSS [2014] AATA 243 for a contrary example.
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In Re O’Cass and SDSS [2016] AATA 876, the Tribunal commented on the construction of s 7(5) of the 2014 Determination: 148.
I would not construe the phrase ‘is participating in’ so narrowly to mean active participation only.
As I have said, s 7(5) is one of the severable elements that go to determining whether a person ‘has actively participated in a program of support’.
149.
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149.
To my mind, the preferable construction is to adopt the broader meaning of ‘participating in’ a program of support, such that, for the purposes of s 7(5) of the Participation Determination, a person may be taken to be participating in a program of support during a period in which the person is temporarily exempt or suspended from active participation on grounds of impairment, alone, if the temporary exemption or suspension is in place when the end of the relevant period is reached.
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In Re Betts and SDSS [2019] AATA 1000, the Tribunal was critical of the Respondent’s failure to interact with the Applicant and arrange any suitable training: 87.
The Tribunal is troubled by the fact that at no stage had Centrelink conducted a JCA on Ms Betts in respect of this DSP claim instead relying upon file reviews and that it never actually discussed with Ms Betts, face-to-face or via telephone, her functional impairment during the qualifying period.
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Centrelink also did not assist Ms Betts to comply with the program of support requirements by never conducting a JCA with her.
The content of programs of support Part 3 of the 2011 Determination and Part 3 of the 2014 Determination contain (in similar form) the guidelines for determining whether an applicant has actively participated in a program of support for the purposes of s 94(2)(aa).
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Those Guidelines require that the program of support: (a) was provided by a designated provider; and (b) was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and (c) provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment (including self-employment); and (d) includes at least one of the following activities: (i) job search; (ii) job preparation; (iii) education and training; (iv) work experience; (v) employment; (vi) return to work; (vii) vocational or occupational rehabilitation; (viii) injury management; (ix) an activity designed to assist the person to return to, maintain or obtain employment.
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Page 17 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 Section 3(1) of the 2011 Determination defined "designated provider" in wider terms than in s 3(1) of the 2014 Determination.
The 2011 Determination included references to programs provided by workers compensation authorities and insurers which are not included in the 2014 Determination.
In Re Kirvan and SDSS [2014] AATA 721, the applicant undertook a TAFE course in property management.
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The Tribunal held that the course did not satisfy criteria (b) and (c) because it was a generic course not focused on the applicant or their needs.
The Tribunal noted that the terms of the Determination were mandatory and binding on the Tribunal See also Re Kumar and SDSS [2014] AATA 442; Re Haakman and SDSS [2014] AATA 624; and Re Elhenday and SDSS [2014] AATA 855.
In Re Betts and SDSS [2019] AATA 1000, the applicant undertook a tertiary qualification in law.
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The Tribunal held that this did not satisfy the tests for a program of support: 75.
Additionally, the Respondent relied upon the case of Cole and Secretary Department of Social Services, which they contended determined that studying a law degree on a full-time basis did not satisfy the requirements of s 94(1)(c).
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Member Shanahan in Cole found: that although she satisfied s 94(1)(b) in terms of the impairment rating, Ms Cole did have a partial capacity to work and was thus required, for the purposes of eligibility, to undertake a program of support.
She has not done this because she is undertaking tertiary studies on a full time basis at Deakin University.
The SSAT found that she did not satisfy s 94(1)(c) of the Act.
While this Tribunal agrees with that finding, it also finds that she does not satisfy s 94(1)(b).
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The Tribunal affirms the decision under review.
76.
The Tribunal does not find Ms Betts had completed a program of support by virtue of undertaking a Juris Doctor.
The Tribunal finds the undertaking of a tertiary qualification aimed at qualifying an individual for a specific discipline, such as law, could not be said to satisfy the requirements of the determination that the course was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment.
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Nor did it provide vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work.
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In Re MacMaster and SDSS [2014] AATA 776, the Tribunal held that attendance for assessment by a rehabilitation provider appointed by the applicant’s workers compensation insurer did not satisfy the requirements for a program of support in that it was limited to an assessment of needs only and so did not satisfy (b), (c) or (d) above.
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In Re McDonald and SDSS [2015] AATA 90 and Re O'Bryan and SDSS [2014] AATA 590, the Tribunal affirmed that attendances at rehabilitation programs organized for workers compensation purposes does not satisfy the requirements of a program of support under the Determination.
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In Re Jefferis and SDSS [2020] AATA 4861, the Tribunal held that attendance at the UNSW Fatigue Clinic Program comprising six appointments with a clinical psychologist over a total of eight visits during a 19-week period was not participation on a ‘program of support” for the purposes of s 9 of the Determination.
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“designated provider” Section 3(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 defines "designated provider" in more narrow terms as: (a) a Job Services Australia provider; (b) a Disability Employment Services provider; (c) an Australian Disability Enterprise; (d) any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.
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In Re Primmer and SDSS [2019] AATA 2508, the Tribunal held that the Commonwealth Rehabilitation Service (CRS) is a designated provider: Page 18 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 72.
The Tribunal must now determine whether the Commonwealth Rehabilitation Services (CRS) is qualified to provide a “Program of Support” under s 94(5)(a) of the Act.
73.
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73.
CRS Australia is a division of the Department of Human Services (DHS), an agency under the Financial Management and Accountability Act 1997 (FMA Act).
Although part of an FMA Act agency, CRS Australia does not receive direct budget funding; instead, it funds its operations through payments received for services delivered.
CRS Australia provides vocational rehabilitation and employment related services to the Australian Government.
74.
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74.
The Department of Human Services, whilst a government agency, is not itself a ‘designated provider’, as defined in s 5(1)(d) of the POS Determination, as it does not provide a program of support that is funded (wholly or partly) by the Commonwealth.
75.
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75.
On this basis, the Tribunal finds that CRS satisfies the definition of a designated provider (emphasis added) pursuant to s 5(d) of the POS Determination which states: Any other person who provides a program of support that is funded (wholly or partly) by the Commonwealth.
In Re SDSS and Konopka [2016] AATA 627, the applicant was a self employed hairdresser.
She was consulting a pain management specialist with the view to maintaining her capacity for work.
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The Tribunal held that this attendance did not constitute a program of support.
The pain specialist was not authorised as a "designated provider" per section 3(1) and the program itself did not satisfy para (g) of the 2011 definition: 20.
With respect to subs 3(g), I accept that one of the goals of Dr Green’s treatment of Ms Konopka is to assist her to maintain her self-employment and that he monitors this and regularly discusses with Ms Konopka her capacity for work and how to optimise this.
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On balance, however, I am not satisfied that this amounts to a program “similar” to Commonwealth funded programs of support in the relevant sense.
21.
Clearly, one of the purposes of pain management treatment in circumstances such as Ms Konopka’s is to give advice about work capacity and assist a person to optimise their sustainable work capacity.
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However, the treatment and advice provided by Dr Green to Ms Konopka was, in my view, fundamentally medical in nature and different from the services contemplated by the Determination.
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While he was clearly assisting Ms Konopka to manage her condition, including by reference to her work capacity, and providing recommendations to her general practitioner aimed at minimising the impact of her symptoms upon her and maximising her work capacity, I am not persuaded that Dr Green was providing a program to Ms Konopka of the kind which would be provided by a “Job Services Australia provider or a “Disability Employment Service” provider.
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[94.07] "work" – s 94(1)(c)(i), 94(5) Ability for continuing work includes the capacity to attract an employer in the open labour market Hours of work Ability for continuing work includes the capacity to attract an employer in the open labour market In Re Panke and Director-General of Social Services [1981] AATA 65, Davies J made the point that an incapacity for work had to be judged against the capacity of the person to attract an employer in the open labour market and not by reference to an employer motivated by benign or charitable motives.
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In Re Hamal and SDSS [1993] AATA 283, the Tribunal considered the meaning of "work" as defined in s 94(5), stating that it is the "normal" workplace against which a person's abilities are to be judged, not the workplace of the "benign" employer.
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It rejected a Department argument that the jobs suggested (car park, service station or museum attendant) would allow Mr Hamal to walk around as necessary and work at his own pace; in the Tribunal's opinion this was "most unlikely given the realities of the modern workplace".
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(at 30 ALD 525) See also Re SDFaCS and Bell [1998] AATA 878, Re Smith and SDFHCSIA [2011] AATA 66 and Re Triantafillou and SDFaCS [2003] AATA 56 where the Tribunal considered “work” to be “work that is carried out in the complex entity that is the ‘open workplace’ and not work that is insulated from the dynamic and Page 19 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 unpredictable demands of this entity.
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There are other arrangements and benefits for work in sheltered workplaces.” (at [51])` In SDFHCSIA v Harris [2010] FCA 360, Greenwood J considered the history of the 1947 and 1991 Act provisions in detail and came to the same conclusion, namely that the concept of “any work” (s 94(2)(a)) required a consideration of the capacity of the person to attract an employer in the open labour market having regard to the level and nature of the disabilities suffered and the type of work that the person was capable of undertaking without retraining.
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The issue of retraining was a subsequent step in the assessment regime (s 94(2)(b)) but even then the capacity for work following retraining must have regard to the realistic capacity of the person to attract an employer in the open labour market following the retraining.
See also Re Bartlett and SDFHCSIA [2010] AATA 369 and Re Hamka and SDFHCSIA [2009] AATA 52 to the same effect.
Re SDSS and Dunn [2015] AATA 401 provides an example of the application of the "arms length labour market" approach: 88.
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The evidence at the time of the assessment period demonstrates clearly that Ms Dunn would struggle to find and maintain employment.
She had not worked for some ten years or more.
Previously she had worked as a chef.
It is highly unlikely that she could sustain work in a clerical or administrative capacity.
As she herself said, she has no experience in clerical tasks.
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The Tribunal is left with the clear impression that she could not endure the patterns, routines and requirements of work, whether the work was manual, clerical, administrative or otherwise.
Based on her own evidence and the abundant medical evidence about her circumstances leading up to and during the assessment period, she would struggle significantly in any type of employment.
She needs to rest.
She needs to be careful about physical movement.
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She needs to be careful about physical movement.
She uses a walking stick In Re SDEWR and Meeth [2007] AATA 2034, the Tribunal found that the applicant’s ongoing fatigue and consequential unreliability made him an unattractive employee and that he therefore had no ongoing ability for work in the labour market.
The same approach was taken in Re Berrell and SDSS [2014] AATA 178.
In Re Lin and SDFHCSIA [2012] AATA 663, the applicant suffered regular migraines that caused her to be unreliable as an employee.
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The Tribunal found that this factor would make her unattractive to any prospective employer and caused her to have a continuing inability for work.
In Re Sazegar and SDFHCSIA [2013] AATA 685, the applicant suffered PTSD which caused him to be reclusive.
The Tribunal held that in a normal open labour market the employer would not be able to cope with the applicant’s withdrawn nature and hence the applicant had no ability for continuing work.
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Hours of work The required hours of work have changed over the years accompanied by transitional provisions for those affected.
In Re SDSS and Crocker [2017] AATA 1085, the Tribunal considered the situation from amendments by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 and the Family Assistance and Other Legislation Amendment Act 2011: 10.
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The applicable provision relating to Mr Crocker’s ability to “work” under section 94(1)(c) and section 94(5) of the Act is affected by transitional provisions enacted in the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005.
That legislation amended the definition of “work” in regard to DSP to mean work that is from 30 hours a week to 15 hours a week, with the legislative change taking effect from 1 July 2006.
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Transitional provisions provide that the amended definition of “work” applies only to those granted DSP on or after 1 July 2006.
Any review, therefore, of Mr Crocker’s entitlement to the benefit should apply the 30 hours per week test in assessing whether he had a continuing inability to work under section 94(1)(c) of the Act.
With respect AAT1 did not consider these transitional provisions and therefore erred in applying the 15 hours a week test.
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Page 20 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 11.
In addition, section 94 was further amendment from 3 September 2011 by the Family Assistance and Other Legislation Amendment Act 2011 (Schedule 3 to that Act).
This legislative change applied a requirement for a person to have actively participated in a program of support before the person could be found to have a continuing inability to work.
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Again, these provisions are not applicable to Mr Crocker because they took effect from 3 September 2011 and so the provisions of section 94(2)(aa) do not apply to him.
12.
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12.
In summary, because Mr Crocker was granted DSP in 2001 and was in receipt of DSP before the provisions applied from 3 September 2011, the assessment in his case of satisfaction of section 94(1)(c) of the Act means that the Tribunal must apply a definition of “work” that is for at least 30 hours per week and, if he meets the other relevant provisions of section 94 in order to qualify for DSP, the requirement for Mr Crocker to have actively participated in a program of support does not apply to him.
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In Re SDFaCS and Martin [2004] AATA 569, the respondent worked as a casual teacher at a NSW High School for a number of years.
Centrelink submitted that he had been paid for more than 30 hours work in each of many weeks and therefore he fell within the meaning of "work" in s 94(5).
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The Tribunal accepted evidence that the actual teaching hours of a casual teacher working on all five days of a school week were 18 hours, and that there was little requirement for additional hours for activities such as playground supervision.
The Tribunal held that the respondent could still have a continuing inability to work in those weeks where he worked on a casual, full-time basis: 28.
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There are two interpretations of the definition of “work” in s94(5) of the SSA that might apply here, with opposite outcomes for Mr Martin.
The first is that, in requiring that “work” be work that is for at least 30 hours per week, the work must involve a physical and/or intellectual effort for at least 30 hours a week, with perhaps time out for the usual breaks.
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The other interpretation is that work taking less than 30 actual hours a week may be regarded as work for at least 30 hours a week if the worker is paid as if the work actually took 30 or more hours a week.
29.
The first interpretation would comply with the policy behind DSP in embodying a principle that a person who can do physical or intellectual work for 30 hours a week is not incapacitated for work.
The second interpretation might reflect a policy based on DSP as an income support payment.
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If the person can work, albeit for fewer than 30 hours a week, and receive payment as if he or she had worked 30 or more hours a week, then the DSP is not necessary to provide income support to that person.
30.
Of these I favour the first interpretation.
I consider it more consonant with the underlying policy of DSP to consider the actual work capacity of the disabled person.
The policy rationale for the second interpretation is observed in any event through application of the income test.
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I could also refer to the SSA as beneficial legislation.
The first interpretation is more beneficial to persons with disability and may be said to find a place in beneficial legislation.
31.
I am satisfied from the sworn evidence of Mr Martin, and from Mr Jeffery’s unsworn but disinterested evidence, that Mr Martin has not in fact worked for at least 30 hours a week during any part of the period in question.
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… In Re Mortimer and SDFaCS [2004] AATA 1216, the Department had raised a debt because the applicant, who had been in receipt of DSP since 1994, worked full-time hours as a real estate agent for 3 months in 2003.
The applicant was employed on a commission basis but was paid a weekly retainer; she did not earn enough commission to cover her retainer.
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The Tribunal noted that the amount of the retainer was less than award wages for the position, which raised the issue whether there was sufficient evidence to satisfy the Tribunal that she was disqualified from pension for the period.
The definition of “work” in s 94(5) specifies work “that is for at least 30 hours per week at award wages or above”.
The Tribunal said: 24.
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The Tribunal said: 24.
I consider that the Act clearly indicates that “work” for the requisite hours at less than award wages is not relevant to establishing whether or not a person has “a continuing inability to work”.
In paragraph 13 quoted above, Ms Paul suggested that the award wages should be calculated on the basis of a 38 hour week.
The Tribunal ultimately did not decide the application on this basis as it considered that, in any case, the debt should be waived under s 1237A.
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Page 21 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 [94.08] “any work” - s 94(2)(a) “any work” “any work” - Deafness cases Prior to the amendments introduced by the Social Security Legislation Amendment Act (No 1) 1995 (No 104/1995) with effect from 29 September 1995, the relevant test in s 94(2) referred to a person’s “usual work”.
The amendments deleted this reference and substituted a reference to “any work”.
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“any work” In SDSS v Pusnjak [1999] FCA 994, the Federal Court placed a significant qualification on the breadth of the expression "any work" in s 94(2)(a).
Drummond J said: 28.
But s 94(2) involves no departure from the intent of the 1991 version of the section: the necessarily limited range of work activities for which the particular claimant is fitted by his actual skills and experience is not to be ignored, in determining his eligibility for this pension.
29.
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29.
Section 94(3), properly understood, shows that this is the way it was intended s 94(2)(a) would operate.
The expression “any work” in s 94(2)(a) is not accompanied by any words of qualification.
So, prima facie, the Secretary is required to have regard to work of any kind that may be available anywhere in making the determination required by s 94(2)(a).
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The definition of “work” in s 94(5) requires the expression “any work” to be read as limited, but only to any work that exists anywhere in Australia.
Section 94(3)(b) reinforces the Secretary’s obligation, in applying s 94(2)(a) to a particular pension claimant, to have regard to any work available anywhere in Australia.
30.
However, s 94(3)(a) imposes a significant qualification on the scope of the inquiry the Secretary is to make in determining whether an applicant meets the requirements of s 94(2)(a).
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It directs the Secretary to ignore the availability to the pension applicant of occupational retraining.
If the expression “any work” in s 94(2) has the unqualified meaning urged by the Secretary, the direction in s 94(3)(a) would be entirely unnecessary.
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Section 94(3)(a) suggests that the draftsman, sensibly enough, intended s 94(2)(a) to focus the decision-maker’s attention on whether the impairment by itself might prevent the particular pension applicant from doing any kind of work for which that person was already fitted by reason of his actual work skills and work experience, ie, work of the kind he was (the impairment apart) capable of doing without the need for any retraining.
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(at 164 ALR 579) An appeal by the Secretary to the Full Federal Court was abandoned and the Secretary no longer contested the construction of s 94(2) applied by Drummond J: SDFaCS v Verney [2000] FCA 570; see [94.06].
In Re Gardner and SDSS [2017] AATA 1553, the Tribunal summarised the present position as follows: 53.
The Tribunal has found that Mr Gardner does have an impairment.
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He also has conditions that affected his previous occupation as a specialised tree surgeon, particularly back problems and allergies.
In considering whether a person has a continuing inability to work, “work” is defined at section 94(5) of the Act to mean any work that is for at least 15 hours a week (on wages that are at or above the relevant minimum wage) and exists in Australia, even if not within the person’s locally accessible labour market.
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It is not restricted to work that a person used to do, or had experience, training or expertise in, or was familiar with.
… See also Re Uebergang and SDFHCSIA [2011] AATA 642 at [94.09] below.
“any work” - Deafness cases A person with profound deafness is not automatically unfit for any work.
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In Re SDSS and Chin [1998] AATA 63, the Tribunal considered the capacity for work of a profoundly deaf 17 year old girl who could not lip read but was able to communicate using AUSLAN or in writing and was achieving very well in educational terms.
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The Tribunal held that Page 22 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 the phrase “any work” necessarily implies a “notion of suitability to work that takes into account not only the persons disabilities but also their abilities, and the impact of that employment on their physical and psychological health and well being”.
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It rejected a DSS submission that the following occupations were “work” that the respondent could do “light process work in testing or fabrication of jewellery or electronics, care-taker, photo developer, cleaner, mail sorter, gardener, labourer, trade’s assistant, factory hand, kitchen hand, laundry work, industrial cleaner, apprentice baker and shop assistant” on two bases: • "a position which does not allow the respondent to make use of her intellectual potential would, in the context of her particular disabilities, be likely to undermine her psychological health and would not be suitable" (at 52 ALD 345); and • her capacity to undertake that work would depend upon the benevolence of her employer, and thus was not work in the open market place intended by the Act.
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An appeal against the decision of the Tribunal was allowed by the Federal Court in SDSS v Chin [1999] FCA 44.
The Court found that there was no evidentiary basis for either of the grounds for decision noted above.
However, in view of its decision as to the insufficiency of the evidence upon which the Tribunal had acted, the Court was not required to reach a conclusion on the important issues of law raised in the decision of the Tribunal, ie.
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whether some element of "suitable work" should be implied into the phrase "any work" in s 94(2)(a) and whether the "benevolent employer" approach taken by the Tribunal in Re Hamal and SDSS [1993] AATA 283 and Re Warner and SDSS [1994] AATA 205 has continuing relevance after 29 September 1995.
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In Re Crossland and SDFaCS [2004] AATA 864, the Tribunal (at [34]) expressly rejected the approach taken in Re Chin, noting that such a qualified interpretation would be inconsistent with the literal words of s 94(2) and with the intention of the legislature when enacting that provision.
The Tribunal held that the applicant’s profound deafness (rated at 60 points) was not, of itself, sufficient to prevent her from doing “any work” within the next two years.
The Tribunal said: 37.
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Likewise, the other reports tendered in evidence by the applicant, namely, the reports of Dr Blackmore (Exhibit A2), Dr Connor (Exhibit A3), Ms Elliott (Exhibit A4) and Ms Webb (Exhibit A6), do not address the abovementioned critical issue for the purposes of s 94(1)(c)(i) and s 94(2)(a) of the Act, but rather address irrelevant or peripheral matters such as the unavailability of work, the unsuitability of available work, and the possible, or even probable, adverse effects on the applicant’s emotional and psychological condition were she to be denied DSP.
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Those reports, furthermore, appear to assume, for the purpose of assessing the likely impact of denying the applicant DSP on her emotional and psychological condition, that she would thereby be required to do menial or unskilled work or be restricted to doing that kind of work, and that her emotional and psychological condition would thereby be adversely affected.
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That assumption is, in the Tribunal’s opinion, unwarranted and, in any event, is beside the point for the purpose of determining whether the applicant is qualified for DSP.
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The point, for the purpose of determining whether the applicant satisfies the “continuing inability to work” qualification criterion specified in s 94 (1)(c)(i) of the Act, is not whether or not the applicant would be required to, or should, do menial work or unskilled work, but rather whether or not the applicant’s impairment is of itself sufficient to prevent her from doing any work (as defined in s 94(5)) within the next 2 years.
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Accordingly, the Tribunal has derived little assistance from those reports in this case.
In Re Rowbottom and SDFaCS [1999] AATA 553, the Tribunal held that a young woman with a 98.5% hearing disability was able to do work, as defined in s 94.
Similarly, in Re Woodiwiss and SDFaCS [2003] AATA 846 a woman with severe binaural hearing loss rated at 35 points was held not to have a continuing inability to work.
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[94.09] Work shy The third category (in [94.03] above), concerning the work shy person or life style choices, forms no part of the person’s impairment and is also irrelevant to the assessment of the person’s capacity or ability for ongoing work.
Page 23 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 In Re Kemp and SDSS [1994] AATA 615, the applicant was described in a report as an “outdoor type” who had no aptitude for office work.
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The Tribunal refused to accept this as a factor in determining ability to work: Continuing inability to work is not to be assessed on the basis of personality or personal preferences - it is to be assessed on the basis of physical, intellectual or psychiatric impairment.
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(at [29]) In Croker v SDEWR [2007] FCA 1635, the Federal Court rejected the applicant's submission that "any work" should not encompass work for which he was overqualified and which might be demeaning or psychologically damaging for him to undertake, having regard to his educational qualifications.
Re Yates and SDFHCSIA [2011] AATA 691 is an example of this issue.
The applicant was severely impaired and satisfied the 20pts test.
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His level of drive was such that he was capable of 15hrs a week full-time work notwithstanding the severe level of his disability.
Unfortunately the applicant saw the range of retraining offered to him as being demeaning and believed that he could retrain himself more efficiently if he had the advantage of the DSP as a base.
The Tribunal said: 9.
Perhaps Mr Yates is right.
He might be able to make a more effective transition to the workplace if he had unrestricted access to DSP.
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His ambition is certainly admirable.
But DSP is not provided to assist in rehabilitation and retraining.
It is designed to help disabled people to live in circumstances where they cannot work because of their disability.
In other words, it is a form of income support.
The legislative scheme contemplates other allowances and mechanisms that are available to assist people to re-train and rehabilitate.
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Mr Yates made it clear he does not think much of the logic of that arrangement, but the Secretary does not have the luxury of tailoring social security arrangements precisely to fit the needs and circumstances of each individual.
The Secretary must apply the legislation as it stands.
Once a judgement is made that Mr Yates could return to the workforce with appropriate assistance and training, DSP is no longer an option.
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The parties should now concentrate their efforts on identifying an appropriate service provider and make an assessment of what other benefits might best suit his circumstances In Re Uebergang and SDFHCSIA [2011] AATA 642, the Tribunal said: 27.
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In relation to the phrase “any work” in s 94(2)(a) of the Act, the Tribunal notes that this phrase ought not be qualified to mean “suitable work” (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at paragraph [34]), and the phrase did not exclude types of employment that a person might consider insufficiently intellectually challenging or were, in the person’s view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at paragraph [27].
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The Tribunal was reminded that, in his evidence, Mr Uebergang had said he expected he could work in IT for 4-5 hours per day.
In Re Barbaro and SDFHCSIA [2011] AATA 895, the Tribunal summarised the authorities relating to the persons attitude to the available work as follows: 11.
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In relation to the phrase “any work” in s 94(2)(a) of the Act, I note that this phrase ought not be qualified to mean “suitable work” (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at para [34]), and the phrase does not exclude types of employment that a person might consider insufficiently intellectually challenging or are, in the person’s view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at para [27]).
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Moreover, in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360, Greenwood J (in the Federal Court) said (at paragraph 26): The reference in s 94(2)(a) to any work is not a reference to any work of any kind anywhere at any time.
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