Aftab and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 820

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 820

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2345

GENERAL ADMINISTRATIVE DIVISION		)
Re		Sabat Aftab

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member A K Britton

Date14 October 2011

PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution decides that as at 20 July 2010, Mr Aftab satisfied the requirements in s 94(1)(a), (b) and (c) of the Social Security Act 1991 and, subject to Mr Aftab meeting all other criteria, qualifies for disability support pension.  

.......................[sgd].......................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility – residence requirements – medical requirements - decision under review set aside

Social Security Act 1991 (Cth) – s 94

WRITTEN REASONS FOR DECISION REVISED FROM THE TRANSCRIPT

14 October 2011 Senior Member A K Britton           

1.      Mr Sabat Aftab, on 30 July 2010, lodged a claim with Centrelink for a disability support pension (DSP).  On 7 August 2010, Mr Aftab’s claim for DSP was rejected on the basis that he was not residentially qualified and he was advised of that decision on the same day.  In September 2010, Mr Aftab, who was then in receipt of Newstart Allowance, returned to Pakistan. On 6 December 2010, Mr Aftab’s Newstart Allowance was suspended because of his absence from Australia.  On 24 January 2011, Mr Aftab requested a review of the decision not to grant DSP.  It is that decision (“the reviewable decision”), which is the subject of Mr Aftab’s application for review to the Administrative Appeals Tribunal.

2. Two months after his request was made, on 15 March 2011, a Centrelink Authorised Review Officer decided that the original decision made in respect of Mr Aftab’s DSP claim should be changed. In short, the Authorised Review Officer decided that as Mr Aftab’s medical condition was not fully diagnosed, treated, and stabilised, his claim should be rejected on the basis that he did not meet one of the criteria for DSP set out in section 94 of the Social Security Act 1991 (Cth), namely s 94(1)(b). Mr Aftab unsuccessfully challenged that decision in the Social Security Appeals Tribunal.

3.      As mentioned, at the start of this morning’s hearing, since this application was made to the Tribunal, Mr Aftab has made voluminous submissions and provided much information which canvases a range of issues.  These include the decision by Centrelink to cancel his Newstart Allowance and the decision not to grant DSP.  And as I have explained to Mr Aftab today, the only decision that I have the power to review is the reviewable decision, that is, the decision not to grant him the DSP.

4. I am advised by Centrelink that terms of settlement were sent to Mr Aftab in relation to his claim for DSP in advance of today’s hearing. I am going to disregard that proposed offer of settlement, which I understand, from what Mr Aftab has said today, he is satisfied with but is yet to sign. I will put that to one side and make my own decision as to whether the proposed consent order should be made. Centrelink concede today that at the point when Mr Aftab made his claim for DSP, he satisfied the criteria for that pension, as set out in s 94 of the Social Security Act 1991 (Cth).

5. In effect, Centrelink are agreeing with what Mr Aftab has contended for some time, that is, that he met both the residence requirement and the criteria specified in s 94. Having considered all of the material before me, I concur with that view. I therefore make the following order: that the decision under review is set aside and in substitution of that decision, as at 20 July 2010, Mr Aftab satisfied the requirements of section 94(1)(a),(b) and (c) of the Social Security Act, and subject to meeting any other relevant criteria, qualifies for the Disability Support Pension.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ..............................................[sgd]..............................
  Associate to Senior Member A K Britton

Date of Hearing  14 October 2011
Date of Decision  14 October 2011
Applicant:   Self represented

Solicitor for the Respondent:     Ms G Heggen, Centrelink Program Litigation and Review Branch