Direen and Secretary, Department of Employment and Workplace Relations - [2006] AATA 935

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 935
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/184

GENERAL ADMINISTRATIVE DIVISION )

Re ANGELA KATHERINE DIREEN

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)
Date 2 November 2006
PlaceHobart

Decision
The decision under review is affirmed.

..............................................
Senior Member

CATCHWORDS
Social Security - disability support pension - impairment rating of 20 points - decision under review affirmed
Social Security Act 1991
Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Freeman v Secretary, Department of Social Security (1998) 15 ALD 671 at p673-674
REASONS FOR DECISION

2 November 2006 Ms A F Cunningham (Senior Member)

1.      The applicant, Angela Katherine Direen has sought the review of a decision made by a Centrelink officer on 7 June 2005, to cancel her disability support pension (DSP) because she no longer qualified. Ms Direen had been in receipt of a disability support pension since 1994 for back pain and headaches. The original decision was affirmed by an Authorised Review Officer.   On 2 December 2005 the Social Security Appeals Tribunal decided to affirm the decision under review.
2.      Ms Direen’s DSP was cancelled on 7 June 2005 and accordingly her qualification for the payment must be determined as at that date (see Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902).
3. The provisions of section 94 of the Social Security Act 1991 (the Act) set out the qualifying factors for DSP:
“94(1) A person is qualified for disability support pension if:
(a)       the person has a physical, intellectual or psychiatric impairment; and

(b)       the person's impairment is of 20 points or more under the Impairment                  Tables; and
(c)       One of the following applies:
(i)        the person has a continuing inability to work;

(ii)        the Health Secretary has informed the Secretary that the   person is participating in the supported wage system   administered by the Health Department, stating the period for   which the person is to participate in the system; and

(d)       the person has turned 16; and

(e)       the person either:

(i)         is an Australian resident at the time when the person first   satisfies paragraph (c); or

(ii)       has 10 years qualifying Australian residence, or has a   qualifying residence exemption for a disability support pension;                 or

(iii)      is born outside Australia and, at the time when the person first   satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent   child of an Australian resident”..

4. It is accepted that Ms Direen has a physical impairment, namely low back pain and thus satisfies the provisions of sub-paragraph (a). There is no dispute that Ms Direen also meets the provisions of sub-paragraphs (d) and (e) of sub-section (1). What remains in issue is (i) whether her permanent impairment rating is of 20 points or more under the…

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 Direen and Secretary, Department of Employment and Workplace...

Details

AGLC: Direen and Secretary, Department of Employment and Workplace Relations [2006] AATA 935
Case: [2006] AATA 935
Decision Date: 2 November 2006

CaseChat Overview and Summary

In the case of Direen and Secretary, Department of Employment and Workplace Relations, the applicant sought a review of a decision regarding their eligibility for a disability support pension. The applicant had received an impairment rating of 20 points and challenged the decision that they were not entitled to the pension. The matter was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue before the AAT was whether the applicant's impairment rating of 20 points was sufficient to meet the criteria for a disability support pension under the Social Security Act 1991. The AAT had to interpret the relevant legislative provisions and consider the evidence provided by the applicant and the Secretary.

The AAT examined the legislative framework and noted that the Act required an impairment rating of at least 20 points to be eligible for a disability support pension. The Tribunal also considered relevant case law, including Freeman v Secretary, Department of Social Security, where similar issues were addressed. The AAT found that the applicant's impairment rating of 20 points was correctly assessed and that the Secretary's decision was based on a proper interpretation of the Act. The Tribunal concluded that the applicant's evidence did not establish a basis to alter the Secretary's decision. The AAT affirmed the decision under review, finding that the Secretary's determination was lawful and appropriately made.

The Tribunal's decision was grounded in a careful analysis of the statutory requirements and the evidence presented. The AAT held that the Secretary's decision was consistent with the legislative provisions and that the applicant's impairment rating did not entitle them to the disability support pension. The AAT's reasoning demonstrated a clear understanding of the statutory criteria and the applicable case law. The decision affirmed the Secretary's assessment and upheld the integrity of the legislative framework. The Tribunal's careful consideration of the evidence and legal principles ensured that the applicant's challenge was thoroughly evaluated. The final orders of the Tribunal affirmed the Secretary's decision, confirming the applicant's ineligibility for the disability support pension.

Orders

Orders of the court

The decision under review is affirmed.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		ANGELA KATHERINE DIREEN