Bradley Berrell and Secretary, Department of Social Services - [2014] AATA 178

[2014] AATA 178

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/0235

Re

Bradley Berrell

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 1 April 2014

Place Sydney
The decision under review is set aside and substituted with a decision that the Applicant was qualified to receive disability support pension on the date of his claim, being 4 May 2012, or within 13 weeks of that date.

........[sgd]................................................................
Ms N Isenberg, Senior Member
Catchwords
SOCIAL SECURITY - disability support pension - psychiatric impairment - permanent conditions - whether the Applicant had an impairment rating of 20 points or more under the impairment tables - whether the Applicant had a "continuing inability to work" - decision under review set aside
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Cases
Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472)
Hamal and Secretary, Department of Social Services (1993) 30 ALD 517
Hanna and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 697
Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms N Isenberg, Senior Member
1 April 2014
DECISION

On 4 May 2012 Bradley Berrell, the Applicant, contacted Centrelink about claiming disability support pension (“DSP”) and made a formal application for that pension on 8 May 2012. His application was refused. That decision was affirmed on internal review and upon review by the Social Security Appeals Tribunal ("SSAT"). The Applicant seeks review of that decision.
ISSUES
The issue for determination is whether the Applicant was qualified to receive DSP from 4 May 2012, or within 13 weeks of this date, ie before 3 August 2012. This requires consideration of whether between those dates the Applicant had conditions which were permanent; those conditions attracted an impairment rating of at least 20 points under the Impairment Tables and, if so, whether the Applicant had a continuing inability to work.
THE LEGISLATION
The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Policy advice contained in the Guide to Social Security Law (‘the Guide’) is also relevant.
Section 94 of the Act provides the qualification criteria for DSP. Relevantly, the person must have a physical, intellectual or psychiatric impairment: s 94(1)(a), which attracts an impairment rating of at least 20 points (s 94(1)(b)) and the person must have a continuing inability to work: s 4(1)(c). A continuing inability to work (“CITW”) is defined in s 94(2) of the Act.
The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination) took effect from 1 January 2012. The Determination contains the Impairment Tables (‘the Tables’) and the rules for their application. The Tables are function-based and describe functional…

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.

Continue reading Bradley Berrell and Secretary, Department of Social Services

Details

AGLC: Bradley Berrell and Secretary, Department of Social Services [2014] AATA 178
Case: [2014] AATA 178
Decision Date: 1 April 2014

CaseChat Overview and Summary

Bradley Berrell sought judicial review of a decision made by the Secretary of the Department of Social Services, concerning his entitlement to a disability support pension. The primary dispute was whether Mr Berrell had a psychiatric impairment with an impairment rating of 20 points or more, and whether he had a continuing inability to work, both of which are prerequisites for eligibility for the pension. The case was heard and determined in the Administrative Appeals Tribunal.

The key legal issues revolved around the interpretation and application of the criteria set out in the relevant legislative framework, specifically the Social Security Act 1991. The Tribunal had to assess the evidence provided regarding Mr Berrell's mental health condition and its impact on his ability to work. The Tribunal also needed to determine whether the Secretary's decision was legally sound and supported by the evidence.

The Tribunal found that Mr Berrell met the criteria for entitlement to the disability support pension. It concluded that there was sufficient evidence to establish that he had a psychiatric impairment with an impairment rating of at least 20 points, and that this impairment resulted in a continuing inability to work. The Tribunal held that the Secretary's decision was not supported by the evidence and was therefore legally flawed. As a result, the Tribunal set aside the original decision and substituted it with a decision that Mr Berrell was qualified to receive the disability support pension.

The final orders of the Tribunal were that the decision under review be set aside and replaced with a decision that Mr Berrell was qualified to receive the disability support pension on the date of his claim, being 4 May 2012, or within 13 weeks of that date. This ruling confirmed Mr Berrell's eligibility for the pension and directed the Secretary to provide the pension accordingly.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I therefore find that, in the relevant period, the Applicant met all the requirements for entitlement to DSP.DECISION 46. The decision under review is set aside and substituted with a decision that the Applicant was qualified to receive disability support pension on the date of his claim, being 4 May 2012, or within 13 weeks of that date.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0235
Re	Bradley Berrell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Ms N Isenberg, Senior Member
Date	1 April 2014
Place	Sydney