Feras El Mohammed and Secretary, Department of Social Services
[2015] AATA 75
•13 February 2015
[2015] AATA 75
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2347
Re
Feras El Mohammed
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin, QC Deputy President
Date 13 February 2015 Place Sydney The decision under review is affirmed.
..............................[sgd]..........................................
The Hon. Brian Tamberlin, QC Deputy President
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – participation in a program of support - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 192
SECONDARY MATERIALS
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
The Hon. Brian Tamberlin, QC Deputy President
13 February 2015
This matter has been remitted to the Tribunal by the Federal Court on the agreed basis that this Tribunal had erred in its application of section 5 of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Determination), made under the Social Security Act 1991 (the Act) because its reasons failed to consider the application of subsection 5(5).
Section 94(1) of the Act establishes the criteria which an individual must meet in order to qualify for Disability Support Pension. Under section 94(1)(c) an individual must either have a continuing inability to work, or have actively participated in a program of support to be eligible for Disability Support Pension. The criteria for active participation in a program of support is outlined in section 5 of the Determination.
Section 5 of the Determination relevantly provides as follows:
(1) A person has actively participated in a program of support if:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c) subsection (6) is satisfied in relation to the person and the program of support.(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.
(3) This subsection is satisfied in relation to a person and a program of support if:
(a) the duration of the program of support was less than 18 months; and
(b) the person completed the program.(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the relevant date of claim; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the relevant date of claim, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.
The remittal was on the basis that in considering the requirements for active participation in this case, it was necessary for the Tribunal to consider whether it was satisfied that at the relevant date of claim, in this case 6 September 2012, the Applicant was participating in a program of support, and whether he was prevented solely because of his impairment from improving his capacity to find, gain or remain in employment through continued participation in the program. The Tribunal in its earlier reasons for decision did not consider this.
AGREED FACTS
The parties agree that the following issues were correctly determined by the Tribunal in its earlier decision on 18 March 2014 and were not subject to legal error:
(a)The Applicant suffered from a back and neck condition, depression, hypertension and asthma which are all permanent conditions that are fully diagnosed, treated and stabilised for the purpose of the application of the Impairment Tables.
(b)The Applicant should be granted 25 impairment points in total under Tables 1, 4 and 5 of the Impairment Tables.
(c)The Applicant had no severe impairment.
(d)The Applicant participated in a program of support for approximately 11.5 months in the 36 month period before his claim for Disability Support Pension on 6 September 2012.
ISSUE
The principal questions for determination is whether the Tribunal is satisfied on the evidence now before it, in relation to the Applicant and the program of support that, as at 6 September 2012, he was participating in a program of support, and whether he was prevented solely because of his impairment from improving his capacity to find, gain or remain in employment with continued participation in the program.
BACKGROUND
It is not disputed that the relevant period for assessing the entitlement of the Applicant to Disability Support Pension is during the 13 week period from 6 September 2012 to 6 December 2012.
The Applicant was born in 1971 and last worked as a casual painter.
On 23 October 2012 the Department decided that the Applicant did not qualify for the Disability Support Pension. This decision was affirmed on review on 21 February 2013. On 16 April 2013 the Social Security Appeals Tribunal (SSAT) decided to affirm the review officer’s decision.
The Applicant applied to the Tribunal for review of the SSAT decision on 17 May 2013 and it affirmed that decision on 18 March 2014.
The Tribunal decision was the subject of an appeal to the Federal Court. The Court on 10 July 2014 made orders by consent which stated that the Tribunal erred in its application of clause 5 of the Determination and remitted the matter to the Tribunal.
On 11 September 2014 the Respondent filed a statement of agreed issues on behalf of both parties.
During the hearing the Applicant did not tender any evidence but simply stated that he had been outside Australia from 2009 to 2011 and only came back to Australia in September 2011.
The Respondent relied on the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975, together with the transcript and material filed in the earlier proceedings and also tendered further material to the Tribunal. In particular there is in evidence a letter to MTC Australia (MTC) seeking information under section 192 of the Social Security (Administration) Act 1999 (the Administration Act) in relation to the Applicant.
MTC is the provider of employment services which administered the relevant program. The evidence from MTC in the form of a letter of 30 October 2014 is that the Applicant first attended at MTC on 20 September 2011. He was referred to MTC by Job Services Australia. The Applicant participated in a program of support with MTC.
The records show that the Applicant attended only three face-to-face appointments with MTC. These were on 20 September 2011, 12 December 2011 and 15 February 2012. At these appointments support and assistance was provided in the form of job search facilities and skills assessment. Funds were paid from the employment pathway fund to cover the costs of a security course. The Applicant completed the course and then sought assistance for the issuing of the actual security licence which was in turn provided. Attempts were made to have regular contact by MTC with the Applicant in the period from 15 February 2012 to 12 March 2013 without any response by him. Accordingly, on 12 March 2013, what is described as a “voluntary exit”, was effected on the basis that the Applicant did not want to participate any longer. After 12 March 2013 the Applicant did not attend any appointments.
During the course of his participation in the program a skills assessment was conducted to ascertain his strengths, skills and barriers to employment. Further training to obtain skills and experience in a new industry was identified as a suitable option for the Applicant. The security industry was identified as a suitable area of employment.
During his relationship with MTC there were two suspensions listed. However, no compliance action could be taken to require the Applicant to attend as he was what was described as a “voluntary client”. He was however exited on two occasions as a voluntary participant on the basis that he did not wish to participate any longer in the program. On the first exit on 12 March 2013 he was not contactable and was not participating. He was referred to full services again on 13 August 2013 and was exited on 6 January 2014.
At all relevant times the Applicant had an assessed work capacity although there was some evidence of health issues. He wanted to work and was taking steps towards retraining to better increase his chances of re-entering the workforce. He completed the certificate in security and obtained a security licence while in the program with MTC. There are no records in evidence to show if there were any changes in his health or impairment between the skills assessment on 12 December 2011 and the relevant date, being 6 September 2012. MTC had no information as to any impairment to his health.
Having regard to the totality of the evidence presently before it, the Tribunal is not satisfied that the Applicant as at 6 September 2012 was participating in a program of support. Also on the evidence presently before it, the Tribunal finds that there is nothing to indicate that the Applicant was prevented solely because of any impairment from improving his capacity to find, gain or remain in employment through continued participation in the program.
CONCLUSION
Because paragraph 5(5) is not satisfied on the basis of the totality of the evidence presently before it, the Tribunal finds that the Applicant is not qualified for Disability Support Pension and therefore the decision under review is affirmed.
I certify that the preceding 21 (twenty - one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC Deputy President ...............................[sgd].........................................
Associate
Dated 13 February 2015
Date(s) of hearing 3 December 2014 Applicant In person Solicitors for the Respondent David McLaren, Sparke Helmore
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