Heimdall and Secretary, Department of Social Services (Social services second review) - [2024] AATA 413

Heimdall and Secretary, Department of Social Services (Social services second review) [2024] AATA 413 (6 March 2024)
Division: GENERAL DIVISION
File Number: 2022/1995
Re:Michael Heimdall
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:6 March 2024
Place:Sydney

The reviewable decision is affirmed.
..........................[SGD]..............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) application – whether the applicant qualified for the DSP during the relevant qualification period – right knee arthritis – adjustment disorder with mixed depressed and anxious mood/mental health conditions – Hearing loss – whether the applicant has a physical, mental or psychiatric impairment – whether the applicant’s disabilities may be assigned a relevant impairment rating – whether the applicant has a continuing inability to work – whether he has participating in a relevant program of support – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
CASES
Augustynski and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 507
Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Kok Yong Tey and Secretary, Department of Social Services [2013] AATA 753
Re Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634
VMXC and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2013] AATA 663;
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Department of Social Services, ‘Social Security Guide’ Guides to Social Policy Law
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
6 March 2024
The decision under review

This decision is about the refusal of Mr Heimdall’s application for Disability Support Pension (DSP) lodged on 24 August 2021. Mr Heimdall will be referred to as the Applicant. He suffers from a number of medical conditions.
The decision being reviewed was made on 8 February 2022 by the Social Services and Child Support Division of the Tribunal (AAT1). AAT1 affirmed the decision made on 22 November 2021 by an Authorised Review Officer who affirmed the primary decision made on 3 November 2021 by the Secretary, Department of Social Services (the Secretary) to refuse the application.
The Applicant’s claim for DSP was rejected because he did not have 20 points or more under the Impairment Tables.
The question to be answered
The question to be answered is did the Applicant satisfy the qualification criteria for DSP at the date he made his claim on 24 August 2021, or within 13 weeks after that date, that is 23 November 2021. That requires careful consideration of the eligibility criteria for DSP set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act) and the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (

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: Heimdall and Secretary, Department of Social Services (Social services second review) [2024] AATA 413
Case: [2024] AATA 413
Decision Date: 6 March 2024

CaseChat Overview and Summary

The applicant, Heimdall, sought review of a decision by the Secretary of the Department of Social Services concerning his eligibility for a Disability Support Pension (DSP). The dispute centred on whether Heimdall qualified for the DSP during the relevant period, considering his various medical conditions. The matter was heard by Mrs J C Kelly, Senior Member.

The primary legal issues before the Tribunal were whether the applicant possessed a physical, mental, or psychiatric impairment, and if so, whether these impairments could be assigned a relevant rating. Crucially, the Tribunal had to determine if Heimdall had a continuing inability to work and if he had participated in a relevant program of support, as required for DSP eligibility.

The Senior Member affirmed the reviewable decision, finding that the applicant did not qualify for the DSP. While the applicant presented evidence of right knee arthritis, adjustment disorder with mixed depressed and anxious mood, and hearing loss, the Tribunal concluded that these conditions did not meet the threshold for a continuing inability to work. Furthermore, there was no evidence presented to suggest the applicant had participated in a relevant program of support, a necessary component for DSP qualification. Consequently, the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I infer that was because there is no suggestion in the evidence that the Applicant was participating in such a program. DECISION For the above reasons, the reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

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