Editors --- "Disability support pension: continuing inability to work; time at which assessment of inability is to be made" [2010] SocSecRpr 32; (2010) 12(2) Social Security Reporter, Article 18

• SECRETARY TO THE DFHCSIA and DOWIE
• Background
• The issue
• The law
• Discussion
• The decision

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Disability support pension: continuing inability to work; time at which assessment of inability is to be made

SECRETARY TO THE DFHCSIA and DOWIE

(2010/207)

Decided: 24th March 2010 by C.R. Wright

Background

Dowie was granted disability pension (DSP) with effect from 27 March 2007. His eligibility was reviewed in August 2008, following which his DSP was cancelled. This decision to cancel was affirmed by an Authorised Review Officer but set aside by the SSAT in April 2009. In each instance the review was focussed upon the question of whether Dowie could be said to have had a ‘continuing inability to work’. In its decision the SSAT said:

It is not disputed that Mr Dowie has a reduced capacity to work and currently works irregular hours for various periods of time. He maintains that he can only work as he is by increasing his pain management medication and in the knowledge that at the end of the work period he can recover. In relation to the definition of work, the Tribunal considers it reasonable to assume that the 15 hours per week must be sustainable on an ongoing basis. This assumption is consistent with the Guide to Social Security at 3.6.2.112 which sets out that the ability to regularly report to work and persist at work tasks are factors to consider in determining a person’s inability to work.

The SSAT concluded that Dowie was incapable of sustaining work of 15 hours per week or more ‘on an ongoing basis’, and therefore had a continuing inability to work.

The Department appealed this decision to the AAT.

The issue

The issue for the AAT in this matter was the point in time at which an assessment of continuing inability to work should be made.

The law

The qualification requirements for DSP are contained in s.94 of the Social Security Act 1991 (the Act). It was not disputed that Dowie met all the relevant criteria,save only for the question that, to be eligible for DSP, an applicant must have a ‘continuing inability to work’ (s.94(1)(c) of the Act).

Prior to July 2006 the definition of ‘work’ for the purposes of determining ‘continuing inability to work’, was work of at least 30 hours per week at award wages or above. It was accepted that, at the time DSP was granted, Dowie met this criteria. However, this definition was altered from July 2006 to refer to work of at least 15 hours per week at award wages or above. The Respondent was reviewed on 6 August 2008, because transitional provisions in the Act provided that anyone who made a disability support pension claim after 11 May 2005 and before 1 July 2006 must be reviewed under the 15 hours per week rule. He was seen by three assessors who each completed a Job Capacity Assessment Report in which they assessed him as having a work capacity of 15-22 hours per week. As a result, his disability support pension was cancelled on 6 August 2008.

Discussion

The Tribunal noted that several assessments of Dowie’s work capacity were made, at various points in time. Referring to these assessments, the Tribunal concluded that at the time the decision to cancel DSP was made there was ‘uncontradicted evidence that he [Dowie] was capable of working 15 hours or more per week...’ (Reasons, Para 6), and that therefore he did not at that time have a ‘continuing inability to work’. The AAT noted that this was the correct approach and in accordance with views of the High Court in Shi v Migration Agents Registration Authority (2008) HCA 31 (30 July 2008). That is, the AAT was fully satisfied that on 6 August 2008, and indeed for a substantial period thereafter, Dowie was not a person with a continuing inability to work within the meaning of section 94 of the Act, following the legislative amendments of 2008. The AAT said it was open to question whether the interpretation of s.94 adopted by the SSAT could be supported but found it unnecessary to resolve that issue.

The decision

The Tribunal set aside the decision under review and affirmed the decision to cancel payment of DSP to Dowie.

[P.A.S.]