Despot and Secretary, Department of Employment and Workplace Relations - [2007] AATA 1874

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1874
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/259

GENERAL ADMINISTRATIVE DIVISION )

Re NADA DESPOT

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr John Campbell, Member and Rear Admiral Tony Horton, Member.
Date 18 October 2007
PlaceSydney

Decision The decision under review is set aside. Mrs Nada Despot is eligible for the disability support pension, the date of effect being 4 March 2005.
..............................................
Members
Dr John Campbell

CATCHWORDS
SOCIAL SECURITY – disability support pension – depression and post traumatic stress disorder – physical, intellectual or psychiatric impairment – diagnosed condition – impairment rating – decision under review is set aside.
LEGISLATION
Social Security Act 1991- Sections 94, Schedule 1B, Subsections 94(1)(a) 94(1)(b),94(1)(c),94(2),94(5),94(5)(a).
Social Security (Administration) Act 1999 – Section 15(4A)
CASE LAW
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
Scott v Secretary, Department of Social Security (1999) 57 ALD 627
Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076
Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
REASONS FOR DECISION

18 October 2007 Dr John Campbell, Member & Rear Admiral Tony Horton, Member

1.           Mrs Despot was born in Croatia in 1956. Mrs Despot arrived in Australia with her daughter and son on special humanitarian visas in August 2003. Her husband was killed during the Civil War in 1992; his mother committed suicide in late 2003 or early 2004. In 1995 Mrs Despot was able to move to Serbia, where she lived and worked for eight years prior to moving to Australia.
2.           Mrs Despot was granted a Newstart Allowance from 28 August 2003. On 4 March 2005, she lodged a claim for sickness allowance or disability support pension (“DSP”), claiming depression and post traumatic stress disorder. This claim was supported by two treating doctors’ reports: Dr P Tomasevic, General Practitioner, dated 18 May 2005, which diagnosed Mrs Despot with two conditions and by Dr M Sokolovic, Consultant Psychiatrist, dated 21 February 2005, wherein he noted he had been treating Mrs Despot since May 2004.
3.           Following a Work Capacity/Participation Assessment Report by a Centrelink psychologist (Ms R Sarkis), the claim (for DSP) was refused on the grounds that the psychiatric condition was temporary. On 25 October 2005, this decision was affirmed. On 1 December 2005, an Authorised Review Officer re-affirmed the decision.
4. On 13 February 2006, the Social Security Appeals Tribunal (“SSAT”) found Mrs Despot’s psychiatric condition to be permanent, but only warranted an impairment rating of 10 points, insufficient, under subsection 94(1)(b) of the Social Security Act 1991(“the Act”), to enable Mrs Despot to be granted the DSP.
ISSUES
5. Appearing for Mrs Despot, Mr Colborne of counsel, as briefed by Mr Hynes of Legal Aid, submitted that the facts supported the contention that Mrs Despot had a permanent psychiatric condition and met the criteria in subsection 94 (1)(b) of the Act.
6. It was further submitted,…

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: Despot and Secretary, Department of Employment and Workplace Relations [2007] AATA 1874
Case: [2007] AATA 1874
Decision Date: 18 October 2007

CaseChat Overview and Summary

Mrs Nada Despot appealed against the Department of Employment and Workplace Relations' decision to deny her eligibility for the disability support pension, on the basis that she did not have a physical, intellectual or psychiatric impairment as required by the Social Security Act. The dispute was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue before the tribunal was whether Mrs Despot's depression and post-traumatic stress disorder (PTSD) constituted a qualifying impairment for the purposes of the Social Security Act. The tribunal also needed to consider the severity and impact of her conditions, and whether these warranted an impairment rating that would qualify her for the disability support pension.

The tribunal found that Mrs Despot did indeed suffer from depression and PTSD, which were diagnosed conditions that qualified as psychiatric impairments. The tribunal noted that the impact of these conditions on her daily functioning was significant, and that this warranted an impairment rating. The tribunal concluded that the decision to deny Mrs Despot eligibility for the disability support pension was therefore incorrect. The tribunal set aside the decision and found that Mrs Despot was eligible for the pension, with the date of effect being 4 March 2005.

In reaching its decision, the tribunal considered the evidence presented by Mrs Despot, including medical reports and expert testimony. The tribunal also took into account the guidelines set out in the Social Security Act and relevant case law. The tribunal found that the decision-maker had failed to properly consider the evidence and had not given sufficient weight to the impact of Mrs Despot's conditions on her ability to work. The tribunal emphasised the importance of a thorough and balanced consideration of all relevant evidence in cases of this kind.

The tribunal's decision was unanimous, and the orders made were that the decision under review was set aside, and that Mrs Despot was eligible for the disability support pension, effective from 4 March 2005. The tribunal also directed that the Department of Employment and Workplace Relations pay Mrs Despot's costs of the appeal.

Orders

Orders of the court

The decision under review is set aside. Mrs Nada Despot is eligible for the disability support pension, the date of effect being 4 March 2005.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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