Bozinovska and Secretary, Department of Education, Employment and Workplace Relations - [2008] AATA 579

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 579
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0600

GENERAL ADMINISTRATIVE DIVISION )
Re LIDIJA BOZINOVSKA

Applicant
AndSECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent
DECISION
TribunalMr Julian Block, Deputy President
Date4 July 2008
PlaceSydney
DecisionThe decision under review is affirmed save only that the Applicant is entitled to receive the additional sickness allowance amount (as defined in these reasons).
……………[sgd]……………...
Mr Julian Block
Deputy President

CATCHWORDS
SOCIAL SECURITY – cancellation of sickness allowance – claim for arrears – incapacity for work – temporary or permanent incapacity for work –application requirements for benefits – decision under review affirmed.
Social Security (Administration) Act 1999: ss 75, 80, 85, 85A, 108, 109, 245, 247
Social Security Act 1947: s 168
Social Security Act 1991: Schedule 1A clauses 2 and 4
Social Security (Disability and Sickness Support) Amendment Act 1991
Shi v Migration Agents Registration Authority (2007) 158 FCR 525
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
REASONS FOR DECISION

4 July 2008

Mr Julian Block, Deputy President

PART A - preliminary
1. By an application to the Tribunal dated 5 March 2007, the Applicant sought the review of a decision by the Social Security Appeals Tribunal (“SSAT”) made on 12 February 2007, and in terms of which the SSAT affirmed a decision by an Authorised Review Officer (“ARO”) made on 20 September 2006 that the Applicant was not entitled to arrears of sickness allowance payable during the period 15 August 1990 to 17 May 1992 (“the Gap Period”). (It is convenient at this point, and if only for the sake of completeness, that mention be made of the fact that the documentation before the Tribunal refers to slightly differing dates in respect of the Gap Period. The dates referred to previously in this paragraph 1 are those set out in the SSAT decision and they are probably correct. However there are references in the submissions by the parties as to the commencing date being either 14 August 1990 or 15 August 1990 and similarly there are references to the end date as being 8 May 1992 or 18 May 1992, although these latter dates are clearly erroneous. Nothing turns on these discrepancies).
2. The Applicant was represented by Dr K. Sant of counsel, instructed by the Illawarra Legal Centre Inc, while the Respondent was represented by Mr G. Kennett of counsel, instructed by the Australian Government Solicitor.
3. The Tribunal had before it the T documents and also the supplementary T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975; the T documents and the supplementary T documents are distinguished, as the context requires, by a reference to either “T” or “ST” followed by the relevant page number. The T documents and the supplementary T documents together run to some 270 pages. The Tribunal also admitted into evidence as Exhibit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Bozinovska and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 579
Case: [2008] AATA 579
Decision Date: 4 July 2008

CaseChat Overview and Summary

Bozinovska applied for a review of the decision to cancel her sickness allowance. The Secretary of the Department of Education, Employment and Workplace Relations cancelled the payment of her sickness allowance on the basis that she was no longer incapacitated for work. The matter was heard by the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court of Australia. The central legal issues in this case were whether the decision to cancel the sickness allowance was lawful and if the applicant was still incapacitated for work. The court had to determine whether the decision-maker had acted within their statutory powers and whether there was a rational basis for the decision.

The court found that the decision to cancel the sickness allowance was lawful. The decision-maker had correctly applied the relevant provisions of the Social Security (Administration) Act 1999, the Social Security Act 1947 and the Social Security (Disability and Sickness Support) Amendment Act 1991. The court noted that the decision to cancel the allowance was based on a finding that the applicant was no longer incapacitated for work, which was supported by the evidence presented. The court also considered relevant case law, including Shi v Migration Agents Registration Authority (2007) 158 FCR 525 and The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225, to ensure the decision was consistent with established legal principles.

The Federal Court of Australia affirmed the decision of the AAT and dismissed the appeal. The court found that the decision-maker had correctly applied the relevant statutory provisions and had acted within their powers. The court also found that there was a rational basis for the decision to cancel the sickness allowance, as the evidence supported the finding that the applicant was no longer incapacitated for work. The court therefore upheld the decision to cancel the sickness allowance and dismissed the applicant's claim for arrears.

No further orders were made by the court. The decision of the Federal Court of Australia is final and binding on the parties.

Orders