Desmond Flatley and Secretary, Department of Social Services

Case [2014] AATA 84

[2014] AATA 84

Division General Administrative Division

File Number

2013/5151

Re

Desmond Flatley

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Dr P McDermott RFD, Senior Member
Date 21 February 2014
Place Brisbane

The Tribunal affirms the decision under review.

.......................Sgd.......................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant did not participate in Program of Support – Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94

Social Security (Administration) Act 1999 (Cth) ss 13, 14, 42, Sch 2 cls 3, 4

CASES

Tey and Secretary, Department of Social Services [2013] AATA 753

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

21 February 2014

INTRODUCTION

  1. I have to determine whether Mr Desmond Flatley (“the applicant”) is entitled to disability support pension (“DSP”).

    PRIOR DECISIONS

  2. On 13 February 2013 the applicant lodged a claim for DSP. On 8 April 2013 this claim was rejected. On 2 July 2013 an authorised review officer affirmed that decision. On 17 September 2013 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision to reject the claim for DSP. On 8 October 2013 the applicant made an application to this Tribunal for review of the decision to reject his claim for DSP.

    RELEVANT LEGISLATION

  3. The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

  4. Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have:

    ·a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act);

    ·an impairment rating of at least 20 points (s 94(1)(b) of the Act); and

    ·a continuing inability to work (s 94(1)(c) of the Act).

  5. The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which they contact the Department regarding the payment, the deemed date of claim (ss 13, 41, 42, Sch 2 cl 3 of the Administration Act). The applicant will be entitled to receive DSP if he was qualified to receive that benefit as at the deemed date of the claim. If he was not qualified to receive DSP on that date he will nevertheless be entitled to receive DSP if he becomes qualified within thirteen weeks of lodging a claim. In that event, the start-day is the day that he becomes qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act).

  6. There are a number of Ministerial Determinations which have to be considered.[1] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Disability Support Pension Determination”) came into force on 1…

Details
AGLC
Desmond Flatley and Secretary, Department of Social Services [2014] AATA 84
Case
[2014] AATA 84
Decision Date

CaseChat Overview and Summary

The case involved Mr Desmond Flatley, who sought a disability support pension (DSP) under the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth). Mr Flatley lodged his claim on 13 February 2013, which was subsequently rejected by an authorised review officer and the Social Security Appeals Tribunal (SSAT). Mr Flatley then applied to the Tribunal for review of the decision to reject his DSP claim. The central issue was whether Mr Flatley qualified for DSP by having a physical, intellectual, or psychiatric impairment, an impairment rating of at least 20 points, and a continuing inability to work, either on the date of his claim or within 13 weeks thereafter.

The court had to determine three key legal issues. Firstly, whether Mr Flatley had a qualifying impairment as at the date of his claim or within the 13-week period. Secondly, whether his impairment rating met the required threshold of at least 20 points according to the Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Lastly, whether Mr Flatley had a continuing inability to work, an essential criterion for receiving DSP. The court examined the evidence and the relevant legislation, including the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011, which outlines the requirements for active participation.

In affirming the SSAT's decision, the court concluded that Mr Flatley did not meet the criteria for DSP. The evidence did not substantiate that he had an impairment of at least 20 points or a continuing inability to work. Moreover, the applicant did not participate in the Program of Support, which is mandated by the Active Participation Determination. The court found that the evidence provided did not sufficiently demonstrate that Mr Flatley qualified for DSP either on the date of his claim or within the 13-week period. The decision to reject his claim for DSP was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have to determine whether Mr Desmond Flatley (“the applicant”) is entitled to disability support pension (“DSP”).PRIOR DECISIONS On 13 February 2013 the applicant lodged a claim for DSP. On 8 April 2013 this claim was rejected. On 2 July 2013 an authorised review officer affirmed that decision. On 17 September 2013 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision to reject the claim for DSP. On 8 October 2013 the applicant made an application to this Tribunal for review of the decision to reject his claim for DSP.RELEVANT LEGISLATION The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have:·a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act);·an impairment rating of at least 20 points (s 94(1)(b) of the Act); and·a continuing inability to work (s 94(1)(c) of the Act). The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which they contact the Department regarding the payment, the deemed date of claim (ss 13, 41, 42, Sch 2 cl 3 of the Administration Act). The applicant will be entitled to receive DSP if he was qualified to receive that benefit as at the deemed date of the claim. If he was not qualified to receive DSP on that date he will nevertheless be entitled to receive DSP if he becomes qualified within thirteen weeks of lodging a claim. In that event, the start-day is the day that he becomes qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act). There are a number of Ministerial Determinations which have to be considered.[1] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Disability Support Pension Determination”) came into force on 1 January 2012. The Disability Support Pension Determination contains the Impairment Tables which are function based and are intended to determine the level of functional impact of impairments (s 5 of the Disability Support Pension Determination). The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Active Participation Determination”) came into force on 3 September 2011. Section 5 of the Active Participation Determination sets out the requirements for active participation. Both of these Determinations are in evidence.[1] See s 26 of the Act.ASSESSMENT PERIOD On 13 February 2013 the applicant lodged his claim for DSP. I am therefore required to review the evidence before me to determine whether the applicant became qualified at any time within the thirteen week period from that date which concluded on 15 May 2013 (“the relevant period”).ISSUES FOR DETERMINATION I have to determine: ·whether the applicant, as at the date of his claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment; and ·whether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables; and ·whether the applicant had a continuing inability to workWHETHER THE APPLICANT HAS AN IMPAIRMENT

Ratio Decidendi

Legal Principle Established

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