Di Martino and Secretary Department of Social Services (Social services second review)
[2015] AATA 993
•30 October 2015
Di Martino and Secretary Department of Social Services (Social services second review) [2015] AATA 993 (30 October 2015)
Division
GENERAL DIVISION
File Number
2015/1827
Re
Franca Di Martino
And
APPLICANT
Secretary Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Damien Cremean
Date 30 October 2015 Date of written reasons 18 December 2015 Place Melbourne The Tribunal affirms the reviewable decision.
[sgd]........................................................................
Senior Member
SOCIAL SECURITY – disability support pension – rate of pension – deemed income – evidence on review – decision affirmed.
Legislation
Social Security Act 1991(Cth) sections 117,1064, 1076
Social Security (Administration) Act1999 (Cth) section 109
Secondary materials
The Guide to Social Security Law
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
18 December 2015
The Applicant, Ms Di Martino, lodged an application with the Administrative Appeals Tribunal to review the decision of the Social Security Appeals Tribunal (SSAT) made on 18 March 2015. The SSAT had affirmed a decision of a Centrelink Authorised Review Officer (ARO) made on 15 December 2014.
The ARO decided that the Applicant’s rate of Disability Support Pension (DSP) under the Social Security Act1991 (Cth) (the Act) had been correctly calculated taking into account deemed income from financial assets about which the Applicant had advised Centrelink since 19 November 2009.
The issue to be decided by the Tribunal is whether the Respondent had correctly calculated the Applicant’s rate of DSP by taking into account deemed income from the financial assets.
The Applicant was granted DSP on 7 June 2007. On various dates between 20 November 2009 and 3 September 2014, the Applicant advised the Respondent of changes in her circumstances that may affect her continued entitlement to DSP. In response to these notifications, the Respondent issued notices advising her of changes to the rate of her DSP.
At the SSAT hearing the SSAT had provided the Applicant with copies of Centrelink documents and asked her for her comments by 17 March 2015. The Applicant did not provide the SSAT with any comments by the due date. In consequence the SSAT proceeded to make its decision.
The Applicant’s reason for lodging an application with the AAT was because she was not satisfied with the decision. That is unhelpful because it does not assist the Tribunal to know what aspects of the SSAT decision the Applicant disagrees with so as to enable it to carry out its review function. It is to be noted those words are written in English—but the Applicant cannot speak or write English. It is assumed therefore that someone else wrote those words for her.
At the hearing the Applicant gave sworn evidence with the assistance of an interpreter. The Applicant’s accompanying support person/friend gave unsworn and unaffirmed evidence. .
I accept the Applicant’s evidence that she honestly believes she had the conversations with the Centrelink persons she told me about. In particular, she says she had conversations with “Mario”. She indicated at one point I think that she would like the Tribunal to have Mario give evidence but the Tribunal was not equipped to know who or where Mario was and could not assist with that request. The effect of these conversations, though, appears to be that her file was to be “closed off” in some manner and for some unspecified reason, or that she was to be entitled to $69.00 extra a week in DSP.
The Applicant said she did not receive the Respondent’s Statement of Facts, Issues and Contentions (SFIC). She changed that later, saying the document would be in her car. I do not accept the Applicant’s evidence that she did not receive the Respondent’s SFIC.
The Tribunal must decide whether the decision under review is wrong or in error in some way—that is whether another decision is the correct or preferable one.
The Tribunal is of course able to assist self- represented persons providing it does not compromise its impartiality. It cannot, however, make the case for a party. Further, in conducting a review, the Tribunal must rely on the evidence presented and, generally speaking, it must be for each party to decide what to present in evidence in that regard.
The Applicant presented no actual evidence and said nothing meaningful which satisfied me that the decision under review is not the correct one. The Applicant was taken to the issues the SSAT highlighted as being in question in relation to her DSP. She was asked to comment on those issues but did not or could not say anything which was helpful. Nor was her support person or friend able to be of assistance to the Tribunal.
It was apparent that the Applicant was entirely unprepared to be able to deal with the complexities of the SSAT’s Reasons for Decision and with the materials in the SFIC. Those materials in particular set out in great detail the position of the Respondent in support of the SSAT’s decision. They include a number of difficult calculations. None was addressed by the Applicant or said to be wrong.
In consequence, despite taking her to the highlighted issues, and calling for her comments, the Tribunal was unable to assist the Applicant further in reviewing the SSAT decision.
The Tribunal did however carefully peruse the SSAT’s Reasons for Decision and did also carefully consider the materials in the SFIC.
Having done so, the Tribunal is satisfied that the SSAT decision is not in error.
As a result, the Tribunal affirms the decision under review.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean ........................................................................
Administrative Assistant
Dated 18 December 2015
Date of hearing 28 September 2015 Date final submissions received 30 October 2015 Applicant In person Advocate for the Respondent James Henderson, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Interpretation
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