JOLEAT YOUNAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS - [2012] AATA 111

[2012] AATA 111

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/1065

Re

JOLEAT YOUNAN

APPLICANT

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

RESPONDENT

DECISION

Tribunal
M D Allen, Senior Member

Date 24 February 2012

Place Sydney
The decision under review is set aside and in substitution the Tribunal decides that the Applicant be paid disability support pension as from 6 August 2010.
............[sgd]..........................................
M D Allen, Senior Member
CATCHWORDS
SOCIAL SECURITY - application for disability support pension - whether incapacities are fully treated and stabilised - decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

CASES
Secretary, Department of Family and Community Services v Michael (2000) 116 FCR 500
REASONS FOR DECISION
M D Allen, Senior Member
24 February 2012

By application made 23 March 2011 the Applicant sought review of a decision by the Social Security Appeals Tribunal (SSAT) that affirmed a prior determination that she was not entitled to payment of disability support pension (DSP).
The criteria for the grant of DSP are set out at s 94 of the Social Security Act 1991:
(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 more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f) the person is not qualified for disability support pension under section 94A.
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2…

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: JOLEAT YOUNAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS [2012] AATA 111
Case: [2012] AATA 111
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the case of JOLEAT YOUNAN, the applicant, against the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, the respondent, the Federal Circuit and Family Court of Australia was called upon to review a decision regarding the applicant's eligibility for a disability support pension. The dispute centred on whether the applicant's incapacities were fully treated and stabilised, which is a critical criterion for eligibility under the Social Security Act 1991. The primary issue before the court was to determine if the decision made by the Department was legally sound and if the Department had correctly assessed the applicant's incapacities and their stabilisation.

The court examined the evidence presented and the process followed by the Department in making its decision. The key legal issue revolved around the interpretation and application of the statutory criteria for the disability support pension, specifically the requirement that the applicant's incapacities must be fully treated and stabilised. The court assessed whether the Department had properly applied these criteria and whether the decision was supported by the evidence. It was crucial to determine if the Department's findings were reasonable and consistent with the legislative requirements.

In its judgment, the court found that the Department's decision was not supported by the evidence and did not properly apply the statutory criteria. The court held that the Department had failed to adequately consider the evidence and make a finding that the applicant's incapacities were fully treated and stabilised. Consequently, the court set aside the decision under review and remitted the matter back to the Department for reconsideration in light of the court's findings. The court's decision highlighted the importance of a thorough and evidence-based assessment in eligibility determinations for social security benefits.

Orders