Fuller and Secretary, Department of Social Services (Social services second review) - [2020] AATA 2209

Fuller and Secretary, Department of Social Services (Social services second review) [2020] AATA 2209 (13 July 2020)
Division:GENERAL DIVISION
File Number: 2019/1921
Re:Daniel Fuller
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:13 July 2020
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension with effect from 13 December 2017.
......................[sgd]..................................................
Dr Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – several conditions including Major Depressive Disorder – whether fully treated and diagnosed – qualification period – medical appointments etc after this – self-reporting – ESA and JCA reports – extreme functional impact – decision set aside – decision substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Fanning and Secretary, Department of Social Services [2014] AATA 447
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Twining and Secretary, Department of Social Services [2019] AATA 5296
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
13 July 2020
BACKGROUND

The Applicant, Mr Daniel Fuller, seeks review of a decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) dated 1 March 2019. The decision affirmed a decision made on 3 January 2018 by the Respondent, the Secretary of the Department of Social Services, to reject the Applicant’s claim for Disability Support Pension (“DSP”) lodged on 13 December 2017.
The Applicant is a 44 year old Australian who lives on his own in regional Victoria.
On 13 December 2017, the Applicant lodged a claim for DSP for “chronic regional pain syndrome” leading to “depression and anxiety”.
On 3 January 2018, the Applicant’s claim for DSP was rejected. On 9 August 2018, an Authorised Review Officer (“ARO”) of Centrelink affirmed the decision made on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables. The ARO reached this conclusion as the Applicant’s condition, although fully diagnosed, was not fully treated and stabilised.
HEARING
A hearing in this matter was conducted over two days on 13 December 2019 and 25 February 2020. The Applicant was represented by Mr Bryn Overend, a community lawyer from Social Security Rights Victoria Inc and the Respondent was represented by Ms Cailin Farrell, a lawyer from Sparke Helmore.
The Applicant gave sworn evidence by telephone and Ms Farrell asked questions of him in cross examination
No witnesses were called on behalf of the Respondent.
LEGISLATION
DSP is payable under the Social Security Act1991 (Cth) (“Act”) in accordance with s 94(1) which as far as material provides as follows:
94 Qualification for disability support pension
(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…

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: Fuller and Secretary, Department of Social Services (Social services second review) [2020] AATA 2209
Case: [2020] AATA 2209
Decision Date: 13 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the eligibility of an applicant for a disability support pension. The Secretary of the Department of Social Services contended that the applicant did not satisfy the requirements of section 94(1)(b) of the Social Security Act 1991 (Cth), or alternatively, did not satisfy section 94(1)(c), and therefore the decision to deny the pension should be affirmed.

The Tribunal was required to determine whether the applicant met the criteria for a disability support pension, specifically whether he had a fully diagnosed and treated mental health condition that resulted in an extreme functional impairment, and whether he met the qualification period requirements. The applicant presented evidence of a significant past business and active lifestyle, followed by a series of traumatic events including betrayal, financial loss, homelessness, and a severe electrocution incident in Indonesia, which he claimed led to his current condition.

The Senior Member found that the applicant satisfied all the requirements of section 94(1)(a), (b), and (c) of the Act. The Tribunal regarded the applicant as suffering from an extreme functional impairment due to his major depressive disorder. Consequently, the decision under review was set aside, and a substituted decision was made granting the applicant a disability support pension with effect from 13 December 2017.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Respondent contended that the Applicant does not satisfy s 94(1)(b) of the Act, but if he does, he does not satisfy s 94(1)(c), and accordingly the decision under review should be affirmed.EVIDENCE The Applicant said that he had qualifications which included painting and decorating. Ten years ago, he ran a painting and rendering business and was mentoring in remote communities (in the Northern Territory and Central Northern Queensland) with Indigenous people. The Applicant told the Tribunal that he worked painting houses “28 days on and one day off“. On his day off he would go to a local school and help out. During his 28 days on, he went to very remote locations and helped paint local people’s houses. He would sometimes have people working for him – as many as 28 or 29 on occasion. He said he was earning good money, perhaps $4,000 or $5,000 a day. He described it as a “gravy train”. He was also looking after his own physical fitness, doing weights and running perhaps 60 or 70 kilometres a week. He played music in a band for a while and was teaching martial arts to adolescents. He described himself at this time as “strong, fit, organised” and “bullet proof”. He recounted that he had had a long term partner who was keen to settle down and have children. He and his partner were living in a community in Mooball in northern New South Wales in a house he had built out of shipping containers. In about 2015 the Applicant said he went to Indonesia to earn more money. While he was away, his partner fell pregnant to a “close friend” of his. He told the Tribunal that when he found out about it, he felt betrayed – “if you betray me that’s one thing that really screws with me”. He said, “that event alone just twisted me totally”. He had not returned to his house in more than four years. Other events around this time included the Commonwealth Bank “somehow” allowing $260,000 to leave his account “overnight”. He also lost all his contracts. He had little money left and, with what indeed he did have left, he then stayed in Indonesia. He said he lived “on the streets for at least a couple of months”. At one point he went and “lived on the streets in Malaysia”. But after this he returned to Indonesia and was helping out a friend in a roof space or cavity, “because he’d fixed the pipe and it was like really dodgy”. The house was on a remote Indonesian island. Apparently while he was there the pipe (which was connected to the water tank) broke and filled the cavity with water. The Applicant said rats had been eating the wires in the roof. As a result, the Applicant got electrocuted. He says he was picked up and thrown through the roof to the ground perhaps two and a half meters below landing “head first” Although he said it’s all “kind of a bit patchy” he says he lost his power of speech and his memory for a period. After this the Applicant said a friend helped him get back to Australia and he went to Melbourne. He still had stitches on his head, and he thinks he went to hospital to have them removed.

Decision

Reasons for decision

I am satisfied that the Applicant, for the reasons I have given, meets all the requirements of s 94(1) (a), (b) and (c) of the Act and is entitled to DSP from the time of his application. I regard him as suffering extreme functional impairment due to his mental health condition of major depressive disorder.DECISION The decision under review is set aside and a decision is substituted that the Applicant is entitled to DSP with effect from 13 December 2017.

Ratio Decidendi

Legal Principle Established

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