Gergios; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1432

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1432

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1370

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And ADEL GERGIOS

Respondent

INTERLOCUTORY DECISION

Tribunal Associate Professor B W Davis AM (Part-time member)

Date15 June 2007

PlaceHobart

Decision

Pursuant to s41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that:

1. The implementation of the Social Security Appeals Tribunal decision of 8 March 2007 is stayed until the decision of the Tribunal on the application for review comes into operation.

2. The stay is granted so that the parties can seek further medical and financial information and determine whether the respondent requires hospitalisation.

3. The matter should be brought to hearing as soon as practicable.

Reasons for decision are stated.

[Sgd B  W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension (DSP) - rejection of claim - SSAT decision - application for review by AAT - stay sought by DEWR - stay granted subject to conditions.

Administrative Appeals Tribunal 1975 – s41(2)

Social Security Act 1991 and Amendments

Social Security (Administration) Act 1999

Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418

Secretary, Department of Employment and Workplace Relations and Kelly (2006) FCA 659

Re Secretary Department of Social Security and Lugovskoy (1998) AATA 497

Re Repatriation Commission and Delkou (1985) 9ALD 454

Re Dart and Director-General of Social Services (1992) 4 ALD 553

Re Gordon and Department of Family and Community Services (1998) AATA 13578

REASONS FOR INTERLOCUTORY DECISION

15 June 2007 Associate Professor B W Davis AM (Part-time member)   

The Application

1.      The Secretary of Department of Employment and Workplace Relations has sought a stay of the decision of the Social Security Appeals Tribunal (SSAT) dated 8 March 2007 to set aside Centrelink’s decision of 19 December 2007 to reject Mr Gergios’ claim for disability support Pension (DSP).    Grounds for the request by DEWR was that the substantive application had real prospects of succeeding.   If the SSAT decision was implemented Mr Gergios’ might be overpaid and recovery would create hardship for him.

2.      The respondent’s response was that he was in very poor health and urgently needed the financial assistance which DSP would provide.

Hearing

3.      A hearing was conducted in Devonport on 23 May 2007.    The applicant was represented by Mr Flemming Aaberg and Mr Brian Sparkes; the respondent was self-represented.

4.      Mr Gergios was affirmed and asked to explain his financial and medical situation.    He said her operated a clothing business, with the assistance of two employees, buying in items and on selling, meeting all business expenses and payments relating to a bank overdraft and retaining the remainder for personal living expenses.   The business was now in jeopardy because of increased competition, his need to borrow from friends, and the emergence of major medical problems.   This included a heart condition, rheumatoid arthritis and ulcerative colitis.   He could not afford the time or cost which surgery now required.

5.      Mr Gergios submitted a number of medical statements as evidence, from Dr Eugene Edillo his treating GP, Dr Marie Feletar (26 February 2007). Dr Jonathan Shulman (14 February 2007), Dr Brent Mitchell (16 June 2005) and Dr R Newnham (21 January 2000) confirming his condition and the need for ongoing and urgent medical treatment.

6.      Mr Sparkes for the applicant said there was no intention of treating Mr Gergios harshly, his initial application for DSP had failed because he did not have the degree of impairment required to qualify for DSP and at the time appeared to have adequate financial resources.   Later it became evident these resources had been dissipated and if DSP was granted, as the SSAT decision of 8 March 2007 now required, it was likely he would incur major debt hardship if the AAT reinstated the initial Centrelink decision.    There was a strong possibility Mr Gergios would not be able to repay the debt anyway.

7.      Mr Sparkes cited a number of prior case determinations, to indicate why a stay or a partial stay was in both the public and Mr Gergios’ interests.    He admitted time was required to permit Mr Gergios to attend to his medical problems, but the case could not be drag on indefinitely.

Decision

8.      The Tribunal initially reserved its decision, but having considered all relevant evidence, has now decided that a partial stay should be granted as follows:

(a)      implementation of the SSAT decision of 8 March 2007 is stayed until the decision of the Tribunal on the application for review comes into operation;

(b)      the stay is granted so that the parties can seek further medical and financial information and determine whether the respondent requires hospitalisation;

(c)       the matter should be brought to hearing as soon as practicable.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  23 May 2007
Date of Decision  15 June 2007
Counsel for the Applicant         self-represented
Solicitor for the Applicant          
Counsel for the Respondent     Mr Brian Sparkes and Mr Flemming Aaberg
Solicitor for the Respondent      Centrelink Legal Services