Keefe and Secretary, Department of Social Services (Social services second review) - [2020] AATA 5

Keefe and Secretary, Department of Social Services (Social services second review) [2020] AATA 5 (3 January 2020)
Division:GENERAL DIVISION
File Number: 2018/6773
Re:Craig Keefe
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:The Hon. S Parry, Member
Date:3 January 2020
Place:Hobart

The Tribunal affirms the decision under review.

............................[sgd].......................................
The Hon. S Parry, Member
SOCIAL SECURITY – disability support pension – eligibility – whether applicant is qualified to be paid disability support pension – whether applicant has a continuing inability to work – whether the applicant’s impairments were fully diagnosed, treated and stabilised – whether the applicant’s impairments attract 20 points or more under the Impairments Table – Decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500, 501, 504
Younan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 111
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606, [14]; Hamal and Secretary, Department of Social Services [1993] AATA 283
Joukhador and Department of Family and Community Services [2000] AATA 1097
Tahtali and Secretary, Department of Family and Community Services [2004] AATA 320
Hamal and Secretary, Department of Social Services [1993] AATA 283
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500, 501, 504.
Younan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 111
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
REASONS FOR DECISION
The Hon. S Parry, Member
3 January 2020

The decision under review is the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) of 30 October 2018 to affirm a decision of the Department to cancel the Applicant’s Disability Support Pension (DSP).
BACKGROUND
The Applicant was granted DSP from 31 January 2011. He continued to be paid DSP until the Department of Human Services (the Department) issued him with an assessment notice on 20 July 2017. Pursuant to this assessment notice, on 3 October 2017, a Job Capacity Assessor (JCA) conducted a review of the Applicant’s impairment and capacity to work.
On 6 July 2018 following the JCA’s assessment, the Department decided that the Applicant was no longer qualified and resolved to cancel his DSP with effect from 15 August 2018.
The Applicant applied for an internal review of the cancellation decision by an Authorised Review Officer (ARO). The ARO considered the Applicant’s conditions and their consequent impairments and made the following findings in relation to each:

Condition

Fully Diagnosed, Treated and Stabilised

Impairment Table

Impairment Rating

Chronic…

Details

AGLC: Keefe and Secretary, Department of Social Services (Social services second review) [2020] AATA 5
Case: [2020] AATA 5
Decision Date: 3 January 2020

CaseChat Overview and Summary

This matter concerned an appeal to the General Division of the Administrative Appeals Tribunal regarding the cancellation of the Applicant's Disability Support Pension (DSP). The Applicant had been in receipt of DSP since 2011, but following a job capacity assessment and subsequent review, the Department of Social Services determined he was no longer qualified and cancelled his pension effective from 15 August 2018. The Administrative Appeals Tribunal (AAT1) had previously affirmed this cancellation decision.

The primary legal issue before the Tribunal was whether the Applicant met the requirements for DSP as set out in section 94(1) of the *Social Security Act 1991* as at 6 July 2018, the date of the cancellation decision. Specifically, the Tribunal was required to determine if the Applicant had a physical, intellectual, or psychiatric impairment, if this impairment attracted a rating of 20 points or more under the Impairment Tables, and if he had a continuing inability to work. The Secretary conceded the Applicant had an impairment but argued he did not meet the threshold for points or the continuing inability to work criteria.

The Tribunal considered the Applicant's conditions, including COPD, Hepatitis C, and chronic elbow and knee pain, in light of the Secretary's arguments that these conditions were not fully diagnosed, treated, and stabilised, or that they did not attract the requisite impairment points. The Tribunal ultimately found that the Applicant did have an ability to work for 15 hours or more per week. Consequently, the Tribunal affirmed the decision under review, upholding the cancellation of the Applicant's DSP.

Orders

Orders of the court

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Background

Background to the litigation

The decision under review is the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) of 30 October 2018 to affirm a decision of the Department to cancel the Applicant’s Disability Support Pension (DSP).BACKGROUND The Applicant was granted DSP from 31 January 2011. He continued to be paid DSP until the Department of Human Services (the Department) issued him with an assessment notice on 20 July 2017. Pursuant to this assessment notice, on 3 October 2017, a Job Capacity Assessor (JCA) conducted a review of the Applicant’s impairment and capacity to work. On 6 July 2018 following the JCA’s assessment, the Department decided that the Applicant was no longer qualified and resolved to cancel his DSP with effect from 15 August 2018. The Applicant applied for an internal review of the cancellation decision by an Authorised Review Officer (ARO). The ARO considered the Applicant’s conditions and their consequent impairments and made the following findings in relation to each: The ARO’s determination broadly accords with the findings of the JCA. It was further observed that, in any event, the Applicant could not be considered to have had a continuing inability to work at the time of the cancellation. The Applicant applied to the AAT1 for review of the ARO’s decision. A hearing was conducted on 30 October 2018 before Member Gregory. The AAT1 affirmed the decision of the ARO on the same day. On 15 November 2018, the Applicant applied for review by the General Division of the Administrative Appeals Tribunal (the Tribunal). The application was heard on 13 August 2019 in Hobart. The Applicant appeared in person and was accompanied by Ms Oogjes. The Respondent was represented by Ms Edwards who appeared by telephone.ISSUES The issue to be decided in this matter is whether the Applicant was qualified for DSP on the date of cancellation, namely 6 July 2018. It should be noted that some discussion occurred during the hearing to ascertain the date of the decision and the date of effect. All parties agreed to the date of decision being the 6 of July and the 15 of August being the date of effect. The Tribunal is required to consider whether the requirements set out in s 94(1) of the Social Security Act 1991 (the Act) were met; in particular, whether the Applicant had:(a)a physical, intellectual or psychiatric impairment; and(b)an impairment of 20 points or more under the Impairment Tables; and (c)(i) a continuing inability to work (as defined in s 94(2)). The Secretary concedes that the Applicant satisfied s 94(1)(a) of the Act, but argues the Applicant did not satisfy s 94(1)(b) or (c). In particular, on the day upon which the Applicant’s DSP was cancelled, the Secretary made the following arguments in their Statement of Facts, Issues and Contentions:(a)The Applicant’s COPD was not fully diagnosed, treated and stabilised and the resultant impairments were unable to be assigned any impairment rating.(b)Even if the Applicant’s COPD was fully diagnosed, treated and stabilised, no more than 10 points would be able to be assigned under the Determination.(c)The Applicant’s Hepatitis C was not present as at the time of the cancellation. In any event, it was not fully diagnosed, treated and stabilised and any resultant impairment would be unable to be assigned an impairment rating.(d)Even if the Applicant’s Hepatitis C was fully diagnosed, treated and stabilised, any resultant impairment would have been unable to be assigned an impairment rating.(e)The Applicant’s chronic elbow pain was fully diagnosed, treated and stabilised, however the resultant impairment was unable to be assigned an impairment rating of more than 0 under either Table 2.(f)The Applicant’s chronic knee pain was fully diagnosed, treated and stabilised, however the resultant impairment was unable to be assigned an impairment rating of more than 0 under either Table 3.(g)The Applicant did not have a continuing inability to work.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that the Applicant did, at the time, have an ability to work for 15 hours or more per week.DECISION I affirm the decision under review

Ratio Decidendi

Legal Principle Established

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Condition	Fully Diagnosed, Treated and Stabilised	Impairment Table	Impairment Rating
Chronic…