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

Case [2018] AATA 38


Giza and Secretary, Department of Social Services (Social services second review) [2018] AATA 38 (18 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2499

Re:Richard Giza

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:18 January 2018

Place:Melbourne

The Tribunal sets aside the decision, and in substitution decides that the Applicant was qualified for disability support pension from 8 October 2014.

[sgd]........................................................................

D. J. Morris, Senior Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – several medical conditions – severe functional impairment – Newstart Allowance paid while DSP claim being assessed – backdating of DSP start day – vulnerable person - backdated to commencement of Newstart Allowance – no discretion for earlier start day – decision set aside and substituted

Legislation

Acts Interpretation Act 1901 (Cth), s 36
Social Security Act 1991 (Cth), ss 94(1), (2), (3), (3B), (3C)
Social Security Administration Act 1999 (Cth), ss 8, 13, 15, Sch 2

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)

Cases

Re Nada Despot and Secretary, Department of Employment and Workplace Relations [2007] AATA 1874

Secondary materials

Administrative Appeals Tribunal Guideline – Persons Giving Expert and Opinion Evidence; issued by the President of the Tribunal on 30 June 2015

REASONS FOR DECISION

Senior Member D. J. Morris

18 January 2018

INTRODUCTION

  1. The Applicant, Mr Richard Giza, is a recipient of Disability Support Pension (DSP), granted to him by a decision of the Department of Human Services (‘the Department’) on 12 March 2015 with a start date of 5 December 2014, a decision affirmed by an Authorised Review Officer (‘ARO’) of the Department, an independent officer not involved in the original decision, on 9 August 2016.

  2. Mr Giza was dissatisfied with the decision regarding the starting date for his DSP so he sought a review of the ARO’s decision by the Social Services and Child Support Division of this Tribunal (‘AAT1’).  On 31 March 2017, having conducted a hearing into the matter, AAT1 affirmed the decision.

  3. The Applicant has availed himself of his statutory entitlement to have a second-tier review of the original decision by the General Division of the Tribunal.

  4. On 18 July 2017 at a directions hearing, Deputy President Forgie made an Order that the scope of the review of the decision is limited to the Applicant’s entitlement to DSP so that the facts, evidence and issues considered by the Tribunal will be limited to those relevant to the qualifications for DSP set out in section 94 of the Act in relation to the relevant period. The hearing proceeded on that basis.

  5. The Tribunal considered two issues. The first is the question of whether Mr Giza was qualified for DSP at the time of the decision. To be qualified for DSP, a person must satisfy the requirements set out in section 94 of the Social Security Act 1991 (‘the Act’).…

Details
AGLC
Giza and Secretary, Department of Social Services (Social services second review) [2018] AATA 38
Case
[2018] AATA 38
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Giza against a decision of the Secretary of the Department of Social Services regarding his claim for a disability support pension (DSP). The core dispute revolved around the date from which Mr Giza was deemed qualified for the DSP, with the applicant contending he qualified earlier than determined by the respondent. The decision was made by D. J. Morris SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Mr Giza was qualified for DSP on the day he lodged his claim, 5 December 2014. If he was not qualified on that date, the Tribunal had to consider whether, pursuant to clause 4(1) of Schedule 2 of the *Social Security (Administration) Act 1999* and section 36(1) of the *Acts Interpretation Act 1901*, he became qualified within the 13-week period commencing the day after his claim was lodged. This period was to be calculated from 6 December 2014 to 6 March 2015. The respondent submitted that Mr Giza met the criteria for a severe impairment, attracting 20 impairment points for a mental health condition, which would exempt him from program of support requirements. The applicant argued he qualified for DSP within the claim period and, moreover, should have been found qualified from October 2012.

The Tribunal accepted the respondent's concession that Mr Giza's qualification for DSP should be back-dated to 8 October 2014. The Tribunal found this concession to be appropriate and consistent with the purpose of Schedule 2 of the *Social Security (Administration) Act 1999*. The Tribunal concluded that it had no discretion to apply an earlier date than that conceded by the respondent.

The Tribunal set aside the previous decision and substituted a new decision finding that the applicant was qualified for disability support pension from 8 October 2014.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In summary, the Tribunal concludes that the fact that Mr Giza has a condition which makes him vulnerable was taken into account in the original decision. The Tribunal considers that the Respondent’s concession that the Tribunal should back-date the start of Mr Giza’s qualification to 8 October 2014 is appropriate and rightly made in this particular case, and consistent with the purport of Schedule 2 of the Administration Act. There is no discretion available to the Tribunal to apply any earlier date.DECISION The Tribunal sets aside the decision, and decides in substitution that the Applicant was qualified for disability support pension from 8 October 2014.

Ratio Decidendi

Legal Principle Established

The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:If: (a)a person (other than a detained person) makes a claim for a relevant social security payment; and (b)the person is not, on the day on which the claim is made, qualified for the payment; and (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and (d)the person becomes so qualified within that period; the claim is taken to be made on the first day on which the person is qualified for the social security payment. Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day. The Tribunal must consider whether Mr Giza was qualified for DSP on the date he lodged his claim, being 5 December 2014. If not, the Tribunal must then consider whether, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and the Interpretation Act, the Applicant became qualified on a day within the 13 week period from 6 December 2014 to 6 March 2015 (the claim period).The Respondent’s submissions on qualification for DSP Mr Nguyen submitted that the Secretary contended that Mr Giza satisfied section 94(1)(a) of the Act in the claim period because he suffered from impairments arising from a neck disorder, bowel cancer/tumour, hypertension and a mental health condition. The Respondent further submitted that the Secretary accepts that Mr Giza’s medical conditions attracted a total of 25 impairment points under the Determination in the claim period, and that 20 impairment points should be assigned for a severe functional impact on activities involving mental health function under Table 5 – Mental Health Function of the Determination. In the Respondent’s submissions, Mr Giza’s claim satisfied sections 94(1)(b) and 94(3B) of the Act in that he had a ‘severe impairment’. The Secretary further submitted that, if this assignment of 20 impairment points under a single impairment table is accepted by the Tribunal, Mr Giza is not required to satisfy the program of support requirements within the meaning of section 94(3C) of the Act prior to his claim for DSP.The Applicant’s submissions on qualification for DSP Mr Giza, and Ms Bahonko on his behalf, contested a number of the submissions the Respondent had made in relation to the assessment of some of his medical conditions. The Applicant submitted that he was qualified for DSP in the claim period, but that it should also be found that he qualified for this benefit in October 2012 when he initially made contact with Centrelink.The Applicant’s submissions on the start day