Dubroja and Secretary, Department of Social Services (Social services second review)

Dubroja and Secretary, Department of Social Services (Social services second review) [2021] AATA 3505 (30 September 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2512, 2020/3635 and 2020/3671
Re:Boris Dubroja
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:30 September 2021
Place:Sydney

Application No. 2020/2512
The Tribunal affirms the decision under review.
Application No. 2020/3635
The Tribunal affirms the decision under review.
Application No. 2020/3671
The Tribunal sets aside the decision under review and, in substitution, decides:
·Mr Boris Dubroja has been a member of a couple with Ms Viktorija Dubroja pursuant to subsection 4(2) of the Social Security Act 1991 (Cth) from 28 February 2012 to the present.
·Mr Boris Dubroja has a disability support pension debt in the amount of $3,471.57 for the period from 28 February 2012 to 12 June 2014 pursuant to section 1223 of the Social Security Act 1991 (Cth).

.............................[SGD]...................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – multiple applications for review – periodic compensation payments – rate of payment – whether applicant was a member of a couple – not married – financial aspects of the relationship – nature of household – social aspects of relationship – sexual relationship – nature of commitment to each other – overpayment debt – disability support pension claim – whether applicant has an impairment rating of 20 points or more under the Impairment Tables
LEGISLATION
Social Security (Administration) Act 1999 (Cth) sch 2, ss 68, 72
Social Security Act 1991 (Cth) ss 4, 24, 42, 94, 1064, 1068A, 1068B, 1184K, 1223, 1236, 1237A, 1237AAD
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Dranichnikov v Centrelink [2003] FCAFC 133
REASONS FOR DECISION
Dr L Bygrave, Member
30 September 2021
INTRODUCTION

Mr Boris Dubroja and Ms Viktorija Dubroja have made applications to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of seven separate matters. These matters relate to decisions made by the Department of Human Services (now Services Australia)[1] (Centrelink), both initially and on review, that were subsequently affirmed by the Social Services and Child Support Division of the Tribunal.
[1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.
This decision relates to the three applications made by Mr Dubroja. While many of the facts and the evidence regarding Mr Dubroja and Ms Dubroja’s circumstances overlap, I note the applications and issues for determination are distinct and so I have written separate decisions in relation to Mr Dubroja’s applications and Ms Dubroja’s applications.
The following applications made by Mr Dubroja are for determination by the Tribunal:
Application No. 2020/2512
Review of decision that Mr Dubroja did not satisfy the qualification criteria for disability support pension in relation to his claim lodged on 17 June 2019.
Application No. 2020/3635
Review of decision that Mr Dubroja has a disability support pension debt in the amount of $7,217.43 for the period from 14 September 2007 to 7 October 2010.
Application No. 2020/3671
Review of decision that Mr Dubroja was a member of a couple with Ms Dubroja in the period from 28 February 2012 to 12 June 2014 and, consequently, has a disability support pension debt in the amount of $2,190.91.
For reference, I note the following applications were also made by Ms Dubroja:
Application No. 2019/5366
Review of decision that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to at least 30 June 2017 and, consequently, has a parenting payment single debt in the amount of $23,270.15 for the period from 28 February 2012 to 29 November 2013.
Application No. 2019/5367
Review of decision that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to at least 30 June 2017 and, consequently, has a carer payment debt in the amount of $22,798.37 for the period from 29 November 2013 to 31 October 2017.
Application No. 2019/5368
Review of decision that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to at least 30 June 2017 and, consequently, has a family tax benefit debt in the amount of $6,609.92 for the period from 1 July 2015 to 30 June 2016.
Application No. 2019/5369
Review of decision that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to at least 30 June 2017 and, consequently, has a family tax benefit debt in the amount of $7,170.87 for the period from 1 July 2016 to 30 June 2017.
These seven applications were heard together by the Tribunal on 11 and 12 August 2021. Ms Dubroja and Mr Dubroja were self-represented at the hearing; they participated in the hearing and gave oral evidence by videoconference, and Mr Dubroja was assisted by an interpreter of the Serbian language. The Secretary had legal representation at the hearing.
After the hearing, the Tribunal directed the Secretary to file further evidence regarding the calculation of the debts for Application No. 2019/5366 and Application No. 2020/3671; this evidence was provided by 16 September 2021, and Mr Dubroja and Ms Dubroja filed written submissions in response on 24 September 2021.
ISSUES
The issues for determination by the Tribunal are:
A. whether Mr Dubroja and Ms Dubroja are members of a couple and, if so, for what period;
B.resulting from issue (A), whether Mr Dubroja has a debt in the amount of $2,190.91 for the period from 28 February 2012 to 12 June 2014 and, if so, whether there are any grounds for writing off or waiving all or part of the debt;
C.whether Mr Dubroja has a disability support pension debt in the amount of $7,217.43 for the period from 14 September 2007 to 7 October 2010 and, if so, whether there are any grounds for writing off or waiving all or part of the debt; and
D. whether Mr Dubroja meets the qualification criteria for disability support pension in relation to his claim lodged on 17 June 2019.
ISSUE A: ARE MR DUBROJA AND MS DUBROJA MEMBERS OF A COUPLE AND, IF SO, FOR WHAT PERIOD?
Background
Mr Dubroja and Ms Dubroja (then named Ms Nives Cvencek) commenced a relationship in 2005, when Ms Dubroja was at high school and Mr Dubroja was about 27 or 28 years old. Ms Dubroja and Mr Dubroja are the biological parents of five daughters who were born in January 2007, May 2008, March 2015, August 2016 and July 2018.
Mr Dubroja and Ms Dubroja assert that they separated in 2006, have ‘never married’ and are not currently members of a couple; however, they both accept they ‘tried’ to be partners for a period between about October 2017 and March 2018 for the sake of their children.[2]
[2] Oral evidence of Ms Viktorija Dubroja on 11 August 2021 and Mr Boris Dubroja on 12 August 2021.
Ms Dubroja received parenting payment single from 6 January 2007 to 28 November 2013. On 12 February 2007, Mr Dubroja was injured in a motor vehicle accident and Ms Dubroja subsequently received carer allowance from 12 May 2011 (to the present) and carer payment from 29 November 2013 (to the present) in her capacity as Mr Dubroja’s carer.
Centrelink assessed the relationship status of Mr Dubroja and Ms Dubroja in 2007, 2008, 2013, 2014 and 2015 and, based on the available information, determined they were not members of a couple. In March 2017, Centrelink commenced a further review and, on 8 November 2017, determined Mr Dubroja and Ms Dubroja were members of a couple from 10 January 2007. On review, an authorised review officer of Centrelink decided the date Mr Dubroja and Ms Dubroja became members of a couple was 28 February 2012. This decision was affirmed by the Social Services and Child Support Division of the Tribunal on 21 August 2019.
Relevant legislation
Subsection 4(2) of the Social Security Act 1991 (Cth) (the Act) provides that a person is a member of a couple if they are legally married or in a relationship with another person and they are not living separately or apart from each other on a permanent or indefinite basis.
Pursuant to subsection 4(3) of the Act, when forming a view on whether a person is living separately and apart from the other person on a permanent or indefinite basis, all the circumstances of the relationship are to be considered including:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
Evidence and findings – financial aspects of the relationship
Residential tenancy agreements dated 20 June 2008, 28 July 2015 and 12 April 2016 show Ms Dubroja and Mr Dubroja signed these agreements as ‘joint tenants’.[3] However, the oral evidence of Ms Dubroja and Mr Dubroja is that Mr Dubroja signed the residential tenancy agreement on 20 June 2008 as ‘a guarantor’ and he did not live with her and their children. They both said that, in the period up to February 2012, Mr Dubroja lived with his parents.
[3] Exhibit TA [24 September 2019], pages 159, 287 and 275.
Mr Dubroja and Ms Dubroja do not dispute that they have lived at the same address from 28 February 2012. In a Centrelink ‘Relationship Details’ form submitted by Ms Dubroja on 11 February 2013, she declared Mr Dubroja commenced living with her on ‘approximately’ 28 February 2012 after his ‘father passed away’ and ‘his family went overseas’.[4] She further declared in this form that she paid the rent, telephone, utilities and her food and household items, while Mr Dubroja gave what money ‘he can’ to the children and paid for his food and household items.[5] Ms Dubroja also declared that she owned a car registered in her name, but it was driven by Mr Dubroja as she does not ‘have a licence’.[6]
[4] Exhibit TA [24 September 2019], page 156.
[5] Exhibit TA [24 September 2019], page 159.
[6] Exhibit TA [24 September 2019], page 162.
On 28 November 2013, Ms Dubroja lodged a Centrelink ‘Relationship Details – Separated under one roof’ form in which she stated the car was owned by Mr Dubroja but they do not ‘share use of the car’ because ‘he drives’.[7] She also noted that she pays the rent and Mr Dubroja ‘helps with bills and food’ and they both pay for ‘food and housekeeping items’.[8]
[7] Exhibit TA [24 September 2019], page 176.
[8] Exhibit TA [24 September 2019], pages 171-172, 175.
Ms Dubroja and Mr Dubroja completed further Centrelink forms in 2017:
·In a ‘Mod P – Partner details’ form dated 9 November 2017, Mr Dubroja declared he had $0.09 in his bank account and he ‘has claimed’ but not been paid compensation.[9]
·In a ‘Relationship Details – Separated under one roof’ form dated 22 November 2017, Ms Dubroja declared she pays for ‘everything’ as Mr Dubroja ‘doesn’t have money’.[10]
[9] Exhibit TA [24 September 2019], page 319.
[10] Exhibit TA [24 September 2019], pages 330-331.
In view of written declarations by Ms Dubroja and Mr Dubroja and their oral evidence that Mr Dubroja ‘can’t afford to live by himself’ and has been and continues to be financially reliant on Ms Dubroja,[11] I set out the following evidence regarding Mr Dubroja’s receipt of social security and compensation payments:
[11] For example, see Exhibit TA [24 September 2019], page 167.
·Mr Dubroja was in receipt of periodic compensation payments due to injuries he sustained in the motor vehicle accident on 12 February 2007 as follows:
o12 September 2007 – 11 April 2008: $1,116.62 per month;
o12 April 2008 – 11 April 2009: $1,163.51 per month;
o12 April 2009 – 11 April 2010: $1,192.60 per month;
o12 April 2010 – 23 September 2010: $1,227.19 per month;
o24 September 2010 – 10 January 2012: $1,227.00 per month;
o11 January 2012 – 2 February 2014: $1,260.32 per month;
o3 February 2014 – 15 May 2014: $1,310.00 per month; and
o16 May 2014 – 11 June 2014: $1,350.56 per month.[12]
·Mr Dubroja was also in receipt of disability support pension paid at the single rate and a reduced rate based on his reported compensation payments in the period from 14 September 2007 to 13 June 2014.[13]
·Mr Dubroja was paid a lump sum compensation payment in the amount of $925,000 on 28 March 2014.[14] As a result of this lump sum compensation payment, Centrelink notified Mr Dubroja on 17 June 2014 that he was subject to a compensation preclusion period from 12 June 2014 to 24 January 2024 and cancelled his disability support pension.
·An amount of ‘$80,181.10’ was deposited into Mr Dubroja’s St George bank account on 15 April 2015.[15]
·On 4 June 2019, the Social Services and Child Support Division of the Tribunal made a decision to waive part of Mr Dubroja’s compensation preclusion period from 4 June 2019 under section 1184K of the Act due to his ‘special circumstances’.[16] This decision explained Mr Dubroja’s receipt and expenditure of his compensation payment as follows: ‘a total of $327,000 was made available to Mr Dubroja’ and he ‘spent $30,000 on the purchase of a new car, $30,000 to visit his family living overseas, $10,000 to purchase new furniture and a washing machine’, and ‘directed $201,000’ to a person presenting as a ‘healer’ who convinced Mr Dubroja that he was patenting a device to alleviate back pain and then absconded from Australia.[17]
·Mr Dubroja has been paid newstart allowance from 24 June 2019.[18]
[12] Exhibit TC [14 July 2020], page 489.
[13] Exhibit TC [14 July 2020], page 484.
[14] Exhibit TC [14 July 2020], page 185.
[15] Exhibit TA [24 September 2019], page 269.
[16] Exhibit R1.
[17] Exhibit R1.
[18] Exhibit TC [14 July 2020], page 769.
In his oral evidence to the Tribunal, Mr Dubroja variously stated that he had received ‘no compensation’, ‘only received $30,000’ and then, when directed to his bank statement, he acknowledged he had received about $80,000. It appeared Mr Dubroja believes that he has not received his compensation payment because his lawyer claimed a substantial amount for costs and the ‘healer’ to whom he gave $201,000 has absconded from Australia.
Mr Dubroja and Ms Dubroja have separate Medicare cards and there is no evidence that they hold joint bank accounts or joint credit cards. However, documents from St George Bank show that, as at 4 August 2017, Mr Dubroja had a bank account that was opened in 2003 and lists Ms Dubroja as a ‘signatory’.[19] In their oral evidence to the Tribunal, neither Mr Dubroja nor Ms Dubroja could identify when this signatory arrangement commenced and Ms Dubroja questioned whether she had access to Mr Dubroja’s account. Ms Dubroja said that she and Mr Dubroja always went to the bank together and he transferred money to her account: she said she only received money from Mr Dubroja in her capacity as ‘his carer’ to pay for his medical and pharmaceutical expenses.[20]
[19] Exhibit TA [24 September 2019], page 299.
[20] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.
Based on the evidence, I make the following findings of fact regarding the financial aspects of the relationship between Mr Dubroja and Ms Dubroja:
·There is no evidence that Ms Dubroja and Mr Dubroja have ever jointly owned real estate or any other assets, or have ever held joint bank accounts or credit cards.
·Ms Dubroja has independent access to Mr Dubroja’s bank account as a signatory to his account.
·Ms Dubroja and Mr Dubroja have been joint tenants of rental properties since 20 June 2008 and therefore, have had shared legal obligations and liabilities in respect of each other since this date.
·Ms Dubroja and Mr Dubroja have received separate social security payments on the basis that they are single. Mr Dubroja received periodic and lump sum compensation payments in the period from 12 September 2007 to 11 June 2014.
·Ms Dubroja and Mr Dubroja have shared day-to-day household expenses. In particular, they have pooled their finances and shared costs associated with their rent, groceries, utilities, household items and furniture, a car and their children since at least 28 February 2012.
On balance, I am satisfied these findings show that Mr Dubroja and Ms Dubroja have pooled their financial resources, including their separate social security payments and Mr Dubroja’s periodic and lump sum compensation payments, and have shared day-to-day household expenses since at least 28 February 2012.
I am satisfied that this factor weighs for Mr Dubroja and Ms Dubroja being members of a couple from at least 28 February 2012 to the present.
Evidence and findings – nature of the household
In a carer allowance claim lodged on 19 May 2011, Ms Dubroja declared that she had provided care ‘7 days a week’ for Mr Dubroja since 12 February 2007.[21] Ms Dubroja and Mr Dubroja accept that they have resided in the same home with their children since 28 February 2012.
[21] Exhibit TA [24 September 2019], page 148.
Both in documents filed with Centrelink and in their oral evidence to the Tribunal, Ms Dubroja and Mr Dubroja have consistently declared that they sleep in separate bedrooms and use separate bathrooms. Ms Dubroja has stated that the nature of her activities in the household (which involves her cooking for Mr Dubroja, cleaning the house, doing the laundry and attending medical appointments with Mr Dubroja) solely reflects her role as ‘his carer’.[22]
[22] For example, see Exhibit TA [24 September 2019], page 327.
Ms Dubroja stated in a ‘Relationship Details – Separated under one roof’ form completed on 22 November 2017 that Mr Dubroja drives the children to school and they both decide ‘matters about the education and development of the children’.[23] In their oral evidence to the Tribunal, Ms Dubroja and Mr Dubroja both confirmed that he drives the children to school or the park and drives Ms Dubroja to the shops.
[23] Exhibit TA [24 September 2019], page 333.
Based on the evidence before the Tribunal, I make the following findings of fact regarding the nature of Mr Dubroja and Ms Dubroja’s household:
·While Ms Dubroja has stated she provided daily care to Mr Dubroja from 12 February 2007 (the date of Mr Dubroja’s motor vehicle accident), there is no objective evidence that they resided together or shared a household prior to 28 February 2012.
·Mr Dubroja and Ms Dubroja sleep in separate bedrooms and use separate bathrooms, but otherwise share a house and share responsibilities for their five children.
·Ms Dubroja and Mr Dubroja have joint responsibility for making decisions about and providing support to their five children.
·Ms Dubroja is responsible for housework including cooking, cleaning and laundry, and Mr Dubroja is responsible for driving. It is not possible to distinguish whether these separate tasks are undertaken on the basis of the nature of their family/household, Ms Dubroja undertaking paid caring responsibilities for Mr Dubroja, or their competencies (for example, only Mr Dubroja has a driver’s licence).

On balance, I am satisfied these findings show that Mr Dubroja and Ms Dubroja have resided as a family with their children since 28 February 2012. I find this factor regarding the nature of the household weighs for Mr Dubroja and Ms Dubroja being in a member of a couple relationship from 28 February 2012 to the present.
Evidence and findings – social aspects of the relationship
Mr Dubroja and Ms Dubroja commenced a relationship in 2005 and separated in 2006. They told the Tribunal they have ‘never married’ and do not consider that they are ‘partners’ or in a relationship with each other.[24]
[24] Oral evidence of Ms Viktorija Dubroja on 11 August 2021 and Mr Boris Dubroja on 12 August 2021.
At the hearing, Ms Dubroja said she and Mr Dubroja did not live together until 28 February 2012 after his father passed away and his mother returned to Serbia. She said Mr Dubroja lived with his parents following his motor vehicle accident in February 2007; she confirmed that she saw him every day between 2007 and 2012 either because she went to his parent’s house to provide care for him or he came to her house to see their children.
Ms Dubroja has received carer allowance from 12 May 2011 and carer payment from 29 November 2013 to the present for the daily care she has provided to Mr Dubroja. She has been Mr Dubroja’s correspondence nominee for Centrelink since 11 December 2012, and she also received carer allowance and was the Centrelink correspondence nominee for Mr Dubroja’s aunt for a period in 2013.[25]
[25] Exhibit TA [24 September 2019], pages 374, 1580 and 1612.
In their oral evidence, both Ms Dubroja and Mr Dubroja had difficulty with describing their relationship. Ms Dubroja agreed that she has described Mr Dubroja to Centrelink as a ‘family friend (father of my children)’[26] and their relationship as ‘friends with benefits’.[27] However, Ms Dubroja repeatedly said that she is Mr Dubroja’s ‘carer’ and the ‘mother of his children’,[28] and Mr Dubroja said Ms Dubroja is his ‘friend’ and they have ‘never been married’ but ‘we said that we would be together [in 2017], whatever that is called in that relationship’.[29] They gave limited information about how their families or any friends view their relationship: Ms Dubroja refused to discuss her relationship with her family at the hearing and said Mr Dubroja’s family accept she is ‘his carer’ and the ‘mother of his children’.[30]
[26] Exhibit TA [24 September 2019], page 148.
[27] Exhibit TA [24 September 2019], page 349.
[28] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.
[29] Oral evidence of Mr Boris Dubroja on 12 August 2021.
[30] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.
This oral evidence contrasts with documentary evidence before the Tribunal that shows Mr Dubroja and Ms Dubroja declared they:
·present to their children that they are in a relationship;[31]
[31] Exhibit TA [24 September 2019], page 333.
·present to their children’s school as members of a couple;[32]
·present to treating medical practitioners as a couple; for example, Dr Gregory Natale (Mr Dubroja’s general practitioner since 2007) has referred to Ms Dubroja as Mr Dubroja’s ‘wife’ in medical reports, and Dr WGD Patrick (medico-legal specialist) referred to Ms Dubroja as Mr Dubroja’s ‘partner’ and reported ‘they have been together from 2012, but subsequently separated and living under the same roof’;[33]
·have presented to the Social Services and Child Support Division of the Tribunal as married; for example, the decision made in relation to Mr Dubroja in the Social Services and Child Support Division dated 4 June 2019 stated:
oMr Dubroja ‘lives with his wife and their five daughters’,
o‘Mr Dubroja’s own and his wife’s parents did not approve of their marriage… [and his] wife is estranged from her family as a consequence of their marriage’, and
oMr Dubroja used part of his lump sum compensation payment to pay for him, Ms Dubroja and their children to travel to Serbia to visit his mother and family in 2014;[34]
·have referred to each other as ‘spouse’ in forms completed and filed with the Social Services and Child Support Division of the Tribunal;[35] and
·have used the same email address and mobile phone contact for their separate applications to the General Division of the Tribunal.
[32] Exhibit TA [24 September 2019], page 333.
[33] Exhibit A10, 27 August 2020 and Exhibit A8.
[34] Exhibit R1.
[35] Exhibit TB [18 May 2020], page 281.
The oral evidence of Ms Dubroja and Mr Dubroja that they have been separated since 2006 also contrasts with Ms Dubroja changing her name with the NSW Registry of Births, Deaths and Marriages from ‘Nives Cvencek’ to ‘Viktorija Dubroja’ on 13 November 2013.[36] Ms Dubroja told the Tribunal she changed her name because she does not ‘have contact with her family’ and wanted to have ‘the same surname as her children’.[37]
[36] Exhibit TA [24 September 2019], page 183.
[37] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.
Based on the evidence, I make the following findings of fact regarding the social aspects of the relationship between Mr Dubroja and Ms Dubroja:
·Ms Dubroja and Mr Dubroja have presented as being married or in a de facto relationship with each other to their children, their children’s school, medical practitioners, the Social Services and Child Support Division and the General Division of the Tribunal.
·Ms Dubroja legally changed her surname in 2013 to be the same surname as Mr Dubroja and their five children.
·There is no objective evidence from any friends, associates, family members or community members that describe the social aspects of the relationship between Ms Dubroja and Mr Dubroja.
·There is no objective evidence to show that Ms Dubroja and Mr Dubroja do not engage in joint social activities, to the extent that they make plans for any social activities.
Weighing the relevant evidence, I am satisfied the social aspects of their relationship show Mr Dubroja and Ms Dubroja have been members of a couple since at least 28 February 2012 to the present.
Evidence and findings – any sexual relationship between the people
Ms Dubroja and Mr Dubroja have five children born between January 2007 and July 2018.
Despite these circumstances, Ms Dubroja and Mr Dubroja dispute that they have or have had a sexual relationship. They separately told the Tribunal that they only had sexual intercourse on five occasions, which resulted in Ms Dubroja becoming pregnant. I find this oral evidence highly improbable, particularly in view of Ms Dubroja’s description of their relationship to Centrelink in 2019 as ‘friends with benefits’.[38]
[38] Exhibit TA [24 September 2019], page 349.
I am satisfied this factor weighs in support of Mr Dubroja and Ms Dubroja being members of a couple from prior to the birth of their first child in January 2007 to the present.
Evidence and findings – the nature of the people's commitment to each other
In their oral evidence to the Tribunal, neither Ms Dubroja nor Mr Dubroja gave any indication that they have been in extended relationships with other people. Ms Dubroja said she was involved in a relationship with another person for two to three months in 2008, but the relationship ‘ended badly’.[39] She also said that she does not see herself meeting or being in a relationship with anyone else until their ‘children are teenagers’.[40] Ms Dubroja said her idea of a partner was someone with whom she would ‘share a bedroom, love and care for, and share emotions’, and said she only shares a house with Mr Dubroja because she is ‘his carer’ and it is part of her ‘religious beliefs’ to look after the father of her children.[41]
[39] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.
[40] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.
[41] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.
While Ms Dubroja and Mr Dubroja state they are not married or in a de facto relationship, the inconsistent and contrary nature of their evidence creates difficulties in understanding and identifying the nature of their commitment to each other. Despite these difficulties, I am satisfied the evidence supports the following findings about the nature of their commitment:
·Ms Dubroja and Mr Dubroja have maintained a continuous relationship from 2005 to the present, which has involved raising five children together. Their five children were born over an 11-year-period and they have lived together in a house with their children since 28 February 2012.
·Ms Dubroja has provided care for Mr Dubroja since his motor vehicle accident on 12 February 2007. She has been paid carer allowance since 2011 and carer payment since 2012 in relation to the care she provides Mr Dubroja.
·There is no evidence that the relationship between Ms Dubroja and Mr Dubroja, such as the nature of their household and the financial and social aspects of their relationship, is expected to change in the near future.
Weighing the evidence, I am satisfied that the nature of commitment between Mr Dubroja and Ms Dubroja shows that they have been in a member of a couple relationship from at least 28 February 2012 to the present.
Conclusion
Considering all the evidence before the Tribunal, I am satisfied that Mr Dubroja and Ms Dubroja have been members of a couple in accordance with the circumstances set out in subsection 4(3) of the Act from 28 February 2012 to the present.
In making this decision, I observe that the information in documents, written statements and Centrelink forms completed by Ms Dubroja and Mr Dubroja is contradictory and inconsistent. Further, despite Centrelink asking questions about their relationship since at least 2007, Ms Dubroja and Mr Dubroja have never provided any objective evidence, such as statements from family members or members of the community, to verify that they have not been in a relationship. Finally, I found the oral evidence of Ms Dubroja and Mr Dubroja to the Tribunal to be ambiguous, evasive and, at times, belligerent and implausible, and this raises significant questions about credibility of their evidence.
Is there a reason to not treat Mr Dubroja and Ms Dubroja as members of a couple pursuant to section 24 of the Act?
For completeness, I note the provisions of subsection 24(1) of the Act state that a person may be treated as not being a member of a couple (as defined in subsection 4(2) of the Act) where:
(a) a person is legally married to another person; and
(b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple.
I am satisfied these provisions are not applicable to the circumstances of Mr Dubroja and Ms Dubroja because they have declared they are not legally married and, therefore, they cannot meet the mandatory requirement in paragraph 24(1)(a) of the Act.[42]
ISSUES B AND C: DOES MR DUBROJA HAVE DISABILITY SUPPORT PENSION DEBTS FOR THE PERIODS FROM 14 SEPTEMBER 2007 TO 7 OCTOBER 2010 AND FROM 28 FEBRUARY 2012 TO 12 JUNE 2014?
[42] Oral evidence of Ms Viktorija Dubroja on 11 August 2021 and Mr Boris Dubroja on 12 August 2021.
Background
Mr Dubroja was paid disability support pension from 14 September 2007 to 12 June 2014. During the whole of this period, he was paid at the single rather than the partnered rate and, in the period from 14 September 2007 to 7 October 2010, the rate of his disability support pension was calculated on the basis that he was in receipt of income protection payments of $729.94 per month.
Centrelink determined, both initially and on review, that Mr Dubroja was overpaid disability support pension in the amount of $7,217.43 for the period from 14 September 2007 to 7 October 2010 because the actual amount of his income protection payments was more than $729.94 per month. The Social Services and Child Support Division of the Tribunal affirmed this decision on 4 June 2020.
Centrelink also determined that Mr Dubroja was overpaid disability support pension in the period from 28 February 2012 to 12 June 2014 on the basis that he was a member of a couple with Ms Dubroja. On 13 May 2020, an authorised review officer of Centrelink varied the debt amount to $2,190.91 and that decision was also affirmed by the Social Services and Child Support Division of the Tribunal on 4 June 2020.
Relevant legislation
Statutory requirements relevant to calculating the rate of disability support pension, the overpayment of a social security payment and reporting requirements are set out in the Act and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The rate of disability support pension is calculated in accordance with section 1064 of the Act and is affected by factors that relevantly include a person’s income, and whether they are single or a member of a couple. Section 8 of the Act defines ‘income’ as an amount earned, received or derived by a person for their own use or benefit. The partnered rate of disability support pension is less than the single rate because it is expected that members of a couple will pool their resources and share expenses.
Pursuant to section 1223 of the Act, an overpayment of a social security payment is a debt to the Commonwealth. Provisions to write off or waive a debt are set out in sections 1236, 1237A and 1237AAD of the Act.
The Administration Act stipulates the statutory reporting obligations of a person who is receiving a social security payment. Sections 68 and 72 of the Administration Act state that Centrelink can provide a person written notice that requires them to inform Centrelink if a specified event or change of circumstances occurs that may affect their payment.
Evidence and findings
Based on evidence set out in the Centrelink records, I am satisfied that:
·Mr Dubroja’s rate of disability support pension for the period from 14 September 2007 to 7 October 2010 was calculated on the basis that he was receiving income protection payments of $729.94 per month.[43] However, during this period, Mr Dubroja’s monthly income protection payments were:
[43] Exhibit TC [14 July 2020], pages 483, 489, 492-494.
o12 September 2007 – 11 April 2008: $1,116.62 per month;
o12 April 2008 – 11 April 2009: $1,163.51 per month;
o12 April 2009 – 11 April 2010: $1,192.60 per month;
o12 April 2010 – 23 September 2010: $1,227.19 per month; and
o24 September 2010 – 10 January 2012: $1,227.00 per month.[44]
[44] Exhibit TC [14 July 2020], pages 400-401.
·In the period between 17 December 2007 and 3 July 2010, Centrelink sent the following correspondence to Mr Dubroja’s address on record about his disability support pension:
oOn 17 December 2007, Centrelink sent a letter to Mr Dubroja that set out his fortnightly disability support pension payments from 14 September 2007 and advised that this payment was adjusted because of his ‘other income source amount’ of $729.94. This letter also stated:
What you have to tell Centrelink
You must tell Centrelink within 14 days … if any of the changes listed below happen or are likely to happen to you. If any of these changes happen, the amount of payment you get may change. If you are paid too much because you don’t tell Centrelink about any of these changes when you have to, Centrelink may make you pay it back …
You must tell us if you: …
Change your marital status, for example you marry, separate…go back to a former partner …
Income, Assets and Investments …
get any money from ANY other source
Compensation…have received compensation or become aware you will receive compensation …[45] [emphasis in original]
oCentrelink sent letters that included this (or very similar) information to Mr Dubroja’s address on record on 10 March 2008, 3 June 2008, 13 June 2008, 28 August 2008, 20 November 2008, 12 February 2009, 7 May 2009, 30 July 2009, 22 October 2009, 14 January 2010, 8 April 2010 and 3 July 2010.
[45] Exhibit TC [14 July 2020], pages 533-536.
On the basis of these findings, I am satisfied that Mr Dubroja’s actual income protection payments were significantly higher than the amount of $729.94 per month reported to Centrelink and consequently, he was overpaid disability support pension in the period from 14 September 2007 to 7 October 2010.
At the Tribunal hearing, Mr Dubroja said he informed Centrelink about his income protection payments and when these amounts increased. However, unfortunately for Mr Dubroja, a review of the Centrelink records shows no evidence that he either informed Centrelink when these income protection payments increased on (or within 14 days of) 12 April 2008, 12 April 2009, 12 April 2010 and 24 September 2010. There is also no evidence that Mr Dubroja informed Centrelink within 14 days of receiving correspondence that they contained incorrect information about the amount of his monthly income protection payments between 17 December 2007 and 3 July 2010.
I note the only evidence in Centrelink file notes dates from 21 September 2010 to 18 October 2010 and shows there was verbal contact between Centrelink, Mr Dubroja and Ms Dubroja (referred to as ‘Nina’) about the actual amounts of his income protection payments.[46]
[46] Exhibit TC [14 July 2020], pages 400-401.
I have had regard to debt calculations in relation to Mr Dubroja’s entitlement to disability support pension in the period from 14 September 2007 to 7 October 2010. As I am satisfied that Mr Dubroja was paid disability support pension at a rate that was higher than he was entitled to receive due to the actual amount of his income protection payments, I find Mr Dubroja was overpaid disability support pension in the amount of $7,217.43 for the period from 14 September 2007 to 7 October 2010.[47] I find the amount of $7,217.43 is a debt to the Commonwealth in accordance with section 1223 of the Act.
[47] Exhibit TC [14 July 2020], page 100.
For the reasons set out at paragraphs eight to 44 above, I am satisfied that Mr Dubroja was a member of a couple with Ms Dubroja from 28 February 2012 to the present.
I have had regard to debt calculations in relation to Mr Dubroja’s entitlement to disability support pension in the period from 28 February 2012 to 12 June 2014. Relevantly, the Secretary filed a ‘MultiCal – Centrelink Debt Calculator’ report on 16 September 2021 that showed Mr Dubroja was paid disability support pension in the amount of $34,707 but only entitled to $31,235.43 in the period from 28 February 2012 to 12 June 2014. This means that he was overpaid disability support pension in the amount of $3,471.57.[48]
[48] Recalculation of debt 2020/3671: ‘MultiCal – Centrelink Debt Calculator’, 16 September 2021.
Based on the evidence, I am satisfied Mr Dubroja was overpaid disability support pension in the amount of $3,471.57 for the period from 28 February 2012 to 12 June 2014 because, as a member of a couple, he was not entitled to be paid at the single rate. I find the amount of $3,471.57 is a debt to the Commonwealth in accordance with section 1223 of the Act.
Are there are any grounds for writing off or waiving all or part of the debts?
As a general rule, a person must repay a debt to the Commonwealth. However, in certain situations, the requirement to repay a debt may be written off, which means that repayment of the debt is postponed for a definite or indefinite period, or waived, meaning that the debt does not need to be repaid.
Section 1236 of the Act stipulates the circumstances for Mr Dubroja’s disability support pension debts to be written off: subsection 1236(1A) states that a debt may be written off if it is irrecoverable at law, the person has no capacity to repay it, the person’s whereabouts are unknown, or it is not cost-effective to try and recover the debt.

There is no evidence before the Tribunal to show any of these circumstances exist and I find that Mr Dubroja’s debts should not be written off.
Section 1237A of the Act states that a debt can be waived if the overpayment is attributable solely to administrative error by the Commonwealth and the person received the payments in good faith.
I am satisfied that Mr Dubroja’s disability support pension debt for the period from 14 September 2007 to 7 October 2010 arose because his actual income protection payments were higher than the payment amount recorded by Centrelink. While I have regard to Mr Dubroja’s oral evidence that he informed Centrelink about both the amount of his monthly income protection payment and when these amounts increased, this is not verified or supported by the documentary evidence from Centrelink. I also note that Mr Dubroja received multiple letters from Centrelink in the period between 17 December 2007 and 3 July 2010 that contained incorrect information about the amount of his monthly income protection payments and there is no record that Mr Dubroja contacted Centrelink at any time prior to 21 September 2010 to advise that he was receiving a higher amount of income protection payments than the amount recorded in this correspondence.
Considering all the evidence, I am satisfied that Mr Dubroja’s disability support pension debt for the period from 28 February 2012 to 12 June 2014 arose because he informed Centrelink that he was not a member of a couple with Ms Dubroja during this period. I therefore find no evidence to show that Mr Dubroja’s debt for the period from 28 February 2012 to 12 June 2014 arose solely due to administrative error by Centrelink.
In making this decision, I note that Centrelink made assessments regarding the relationship between Mr Dubroja and Ms Dubroja in 2007, 2008, 2013, 2014 and 2015, and determined on each of these occasions that they were not in a member of a couple relationship on the basis of the information provided by Mr Dubroja and Ms Dubroja at the time. I am satisfied that, considering all the evidence before this Tribunal, the information provided by Mr Dubroja and Ms Dubroja to Centrelink has included inaccurate and misleading statements about the nature of their relationship.
Consequently, I am satisfied there is no evidence to waive Mr Dubroja’s disability support pension debt in the amount of $3,471.57 for the period from 28 February 2012 to 12 June 2014 pursuant to section 1237A of the Act.
Section 1237AAD of the Act provides that all or part of a debt may be waived in ‘special circumstances’. This waiver can only apply where:
·the debt did not result wholly or partly from a person ‘making a false statement or false representation’ or failing to comply with a provision of the Act; and
·there are circumstances ‘other than financial hardship alone’ that are deemed ‘special’ and make it desirable to waive the debt; and
·it is more appropriate to waive rather than write off the debt.
The term ‘special circumstances’ is not defined in the legislation; however, decisions by the Tribunal and the Federal Court have considered the issue of special circumstances on many occasions. In each case, the particular circumstances of the situation were examined to determine whether the circumstances were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered. Therefore, the consideration of special circumstances requires deliberation as to whether there are circumstances in the particular case that suggest an exception should be made and the usual rule should not apply: see, for example, Dranichnikov v Centrelink [2003] FCAFC 133 at [65]-[66]; see also Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33].
Consistent with my observations at paragraphs 44 and 68 above, I have significant concerns about the integrity of the evidence presented by Mr Dubroja and Ms Dubroja to Centrelink and this Tribunal. I find the written statements and declarations by Mr Dubroja and Ms Dubroja over the period from 2007 to 2021 contained inconsistent and contradictory information, and their oral evidence to the Tribunal was ambiguous, evasive and, at times, implausible. I am satisfied that this finding raises a clear question about the extent to which Mr Dubroja’s disability support pension debts resulted from him providing misinformation to Centrelink.
I further note that a debt can only be waived by reason of special circumstances where there are circumstances in addition to financial hardship; this means that financial hardship on its own is not sufficient to make a finding of special circumstances.
Mr Dubroja confirmed at the Tribunal hearing that he continues to receive jobseeker payment, and Ms Dubroja also confirmed she receives carer payment, carer allowance and family tax benefit; their combined social security payments total more than $2,700 per fortnight.
Mr Dubroja told the Tribunal he experiences health issues related to his motor vehicle accident in 2007. His claim for disability support pension and supporting medical evidence is set out in detail and considered at paragraphs 79 to 105 below.
Mr Dubroja provided no other evidence about either his situation or the circumstances of his five children.
While I accept Mr Dubroja experiences difficulties with his health, I do not find these circumstances are to a level that the usual rule should not apply or that it is unreasonable for Centrelink to recover his debts. In particular, I find there is no evidence that Centrelink withholding minimum fortnightly payments from Mr Dubroja’s social security payments would cause him or his children financial hardship.
Weighing my findings in relation to all the evidence, I am satisfied there are no special circumstances that support waiving Mr Dubroja’s disability support pension debts pursuant to section 1237AAD of the Act.
ISSUE D: DOES MR DUBROJA MEET THE QUALIFICATION CRITERIA FOR DISABILITY SUPPORT PENSION?
Background
On 17 June 2019, Mr Dubroja lodged a claim for disability support pension. This claim was rejected by Centrelink, both initially and on review, on the basis that Mr Dubroja did not meet the qualification criteria for disability support pension in subsection 94(1) of the Act. This decision was affirmed by the Social Services and Child Support Division of the Tribunal on 21 April 2020.
Relevant legislation – qualification for disability support pension
The qualification criteria for disability support pension are set out in subsection 94(1) of the Act and relevantly provide:
(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) …
(i) the person has a continuing inability to work.
Further, Mr Dubroja must satisfy these criteria on the date he applied for disability support pension on 17 June 2019 or within the following 13 weeks: section 42 and Schedule 2 to the Administration Act (the claim period).
Rules for assigning impairment ratings
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).
The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how the impairment affects a person’s ability to function, it may be rated between nil and 30 points.
An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: subsection 6(4) of the Impairment Tables Determination.
When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified doctor; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.
Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.
Relevantly, the Introduction to Table 5 – Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis:
…must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Evidence and findings
Paragraph 94(1)(a) of the Act – does Mr Dubroja have medical conditions that cause impairment?
Based on the medical evidence, I find that Mr Dubroja sustained physical and psychological injuries in a motor vehicle accident on 12 February 2007 and, during the claim period, had medical conditions that included pain in his neck, back, shoulder and knees, abdominal pain, diabetes, hernia and depression and anxiety.
I am satisfied that Mr Dubroja satisfied paragraph 94(1)(a) of the Act during the claim period.
Paragraph 94(1)(b) of the Act – does Mr Dubroja have an impairment rating of 20 points or more under the Impairment Tables?
Mr Dubroja sustained injuries in a motor vehicle accident on 12 February 2007 and his resulting physical injuries/symptoms are verified in:
·medico-legal reports written by Dr Elias Matalani (consultant occupational physician) dated 13 August 2007 and Dr Peter Giblin (orthopaedic surgeon) dated 20 August 2007;
·a psychological assessment report by Ms Olga Asad (consultant psychologist) dated 23 August 2007;
·a treating doctor’s report completed by Dr Gregory Natale (general practitioner) on 14 September 2007;
·a medical/psychiatric report by Dr Milorad Sokolovic (consultant and forensic psychiatrist) dated 18 June 2008;
·reports by Dr David Manohar (consultant physician, interventional pain physician) dated 14 October 2008, 13 January 2009 and 31 March 2009
·medical imaging of Mr Dubroja’s cervical and lumbar spine dated 26 February 2007, an MRI of his cervical spine on 28 May 2007 and medical imaging of his thoracic spine on 7 June 2007;
·MRIs of Mr Dubroja’s right shoulder on 10 November 2008 and 20 May 2011;
·medical imaging of Mr Dubroja’s cervical, thoracic and lumbar spine dated 26 June 2008 and 20 May 2011;
·a medical letter by Dr David Duckworth (shoulder and elbow surgeon) on 17 August 2011; and
·a medico-legal report by Dr Anthony Greenberg (general surgeon and gastrointestinal surgeon) on 27 April 2012.
Dr Natale also provided reports about Mr Dubroja’s medical conditions, treatment and functional impairment on 20 February 2013, 12 January 2015, 14 October 2015, and 19 February 2018.
Prior to the Tribunal hearing, Mr Dubroja filed further medical documents including:
·a medico-legal report by Dr WGD Patrick (general, vascular and trauma surgeon) dated 6 March 2020;
·medical imaging of his right ankle dated 24 August 2020; and
·further reports by Dr Natale dated 29 April 2020, 16 July 2020, 27 August 2020 and 13 January 2021.
Spinal condition
I have had regard to the medical evidence set out in paragraphs 90 to 92 above and, relevant to the claim period, Dr Natale’s report dated 19 February 2018 that stated:
·Mr Dubroja continued to suffer chronic lower back pain despite treatment including medication, physiotherapy and steroid injections; and
·Mr Dubroja’s condition had ‘stabilised’.[49]
[49] Exhibit TB, p 240.
A Job Capacity Assessment report dated 30 September 2019 stated that Mr Dubroja reported limited tolerance of physical activity, stiffness in his back, difficulty transferring from sitting-standing-laying, sitting limited to 10-20 minutes, standing limited to 3-4 minutes and bending limited to table height.
I note that Dr Natale, in reports dated 16 July 2020, 27 August 2020 and 13 January 2021, provided assessments of Mr Dubroja’s functional capacity in relation to his spine; however, as these reports are dated more than ten months after the claim period, I place limited weight on this evidence.
At the Tribunal hearing, Mr Dubroja was able to remain seated for periods up to 90 minutes, use his left arm to drink from a can, and stand for more than ten minutes. He said he drives his car most days to take his children to school or the park, take Ms Dubroja to the shops and/or attend appointments.
Having regard to the medical evidence, I am satisfied that Mr Dubroja’s spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period. In relation to Table 4 – Spinal Function of the Impairment Tables, I find that Mr Dubroja can be assigned 10 points on the basis that he is able to sit for more than 30 minutes and is unable to sustain overhead activities. I note there is no medical evidence during the claim period to verify that Mr Dubroja was unable to turn his head or bend his neck without turning his trunk, or was unable to bend forward to pick up a light object from a desk or table, or was unable to remain seated for less than 10 minutes. For this reason, I cannot assign 20 points in accordance with Table 4 – Spinal Function of the Impairment Tables Determination.
Mental health conditions
The medical evidence before the Tribunal includes a report by Ms Asad on 23 August 2007, which stated that Mr Dubroja suffered from ‘depression and anxiety’ and recommended he attend therapy.[50] Dr Sokolovic further opined on 18 June 2008 that Mr Dubroja sustained concussion from the motor vehicle accident ‘which was compounded by post-traumatic stress disorder (PTSD) syndrome, anxiety and severe depression’.[51]
[50] Exhibit TB [18 May 2020], page 140.
[51] Exhibit TB [18 May 2020], page 172.
I note that Dr Natale reported on 27 August 2020 that Mr Dubroja ‘continues to have chronic depression’ and ‘has taken antidepressant medication’.[52]
[52] Exhibit A10.
Based on the available reports, I am satisfied that Mr Dubroja was diagnosed with depression and anxiety in 2008 by an appropriately qualified medical practitioner as required by Table 5 – Mental Health Function of the Impairment Tables. However, there is no evidence that Mr Dubroja’s mental health condition was fully treated and fully stabilised during the claim period. In particular, there is no evidence that Mr Dubroja was taking antidepressant medication or receiving psychological counselling. For this reason, I am unable to assign points for this condition under the Impairment Tables Determination.
Other conditions
In his claim for disability support pension, Mr Dubroja recorded other conditions including diabetes, stomach injuries, shoulder injury, hernia (awaiting operation) and knees. The medical report by Dr Natale that is most contemporaneous to the claim period is dated 19 February 2018 and stated that Mr Dubroja has ‘become overweight and now has diabetes’; there is no reference to other conditions or to any specialist referral or treatment in relation to the diagnosis of diabetes.
I note that Dr Natale provided a medical report dated 27 August 2020 that set out Mr Dubroja’s medical conditions including a ‘history of metabolic syndrome’, ‘right shoulder osteoarthritis, rotator cuff tendinopathy and subacromial bursitis’, ‘osteoarthritis in both knees, left ankle and both feet’, ‘abdominal pain and bloating as a consequence of hiatus hernia, oesophagitis, gastritis as well as haemorrhoids’.[53] As the report is dated more than 11 months after the claim period, I am unable to have regard to this evidence.
[53] Exhibit A10.
I find there is insufficient medical evidence to show any of these medical conditions were fully treated and fully stabilised during the relevant claim period, and so I cannot assign points for these conditions in accordance with the Impairment Tables Determination.
For these reasons, I am satisfied that Mr Dubroja did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period because his impairments were not rated at 20 points or more under the Impairment Tables.
As I find that Mr Dubroja did not qualify for the disability support pension during the claim period, it is not necessary to consider whether he had a continuing inability to work.
DECISIONS
Application No. 2020/2512
The Tribunal affirms the decision under review.
Application No. 2020/3635
The Tribunal affirms the decision under review.
Application No. 2020/3671
The Tribunal sets aside the decision under review and, in substitution, decides:
·Mr Boris Dubroja has been a member of a couple with Ms Viktorija Dubroja pursuant to subsection 4(2) of the Social Security Act 1991 (Cth) from 28 February 2012 to the present.
·Mr Boris Dubroja has a disability support pension debt in the amount of $3,471.57 for the period from 28 February 2012 to 12 June 2014 pursuant to section 1223 of the Social Security Act 1991 (Cth).

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

................................[SGD]..................................
Associate
Dated: 30 September 2021

Date(s) of hearing: 11 and 12 August 2021

Date final submissions received: 24 September 2021

Applicant: In person

Solicitors for the Respondent: Dr Stephen Thompson, Sparke Helmore Lawyers

[2021] AATA 3505

30 September 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Natural Justice

Date(s) of hearing:	11 and 12 August 2021
Date final submissions received:	24 September 2021
Applicant:	In person
Solicitors for the Respondent:	Dr Stephen Thompson, Sparke Helmore Lawyers