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

[2016] AATA 627

Konopka; Secretary, Department of Social Services and (Social services second review) [2016] AATA 627 (23 August 2016)

Division	GENERAL DIVISION
File Number	2014/4250
Re	Secretary, Department of Social Services
APPLICANT
And	Danielle Konopka
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	23 August 2016
Place	Adelaide

The decision under review is set aside and in substitution for that decision, it is decided that Ms Konopka was not qualified for disability support pension at the date of her claim or within 13 weeks of that date.

............. [Sgd] ........................................

Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Whether respondent satisfies qualification requirements for DSP – Whether respondent had a continuing inability to work within the meaning of section 94 of the Social Security Act 1991 – Definition of “designated provider” – Whether treatment to maintain self-employment amounts to “program of support” – Decision under review set aside.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, Sch 2 cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President K Bean

23 August 2016

1. In March 2010, the respondent in this matter, Ms Konopka, unfortunately sustained serious injuries to her right leg, knee and ankle. She suffered these injuries as a result of falling into an open Telstra inspection/work pit on the footpath at night outside her family home.[1] She is currently pursuing a common law claim against Telstra in respect of the injuries she sustained as a result of falling into the pit, which it seems was inadequately fenced off and/or marked.

   [1]     Exhibit 1, T22/276.

2. Unsurprisingly, this incident has had a very significant effect on Ms Konopka’s life, although she has done her best to minimise this. She has continued to pursue her goals and aspirations, and has continued to work in her chosen occupation of hairdressing, albeit with considerable support from her family.

3. Nevertheless, having regard to the significant impact of her injuries upon her earning capacity, on 28 March 2014, Ms Konopka lodged a claim for disability support pension (DSP).

4. That claim was rejected both initially and upon review by Centrelink. However, on 23 July 2014, the then Social Security Appeals Tribunal (SSAT) decided that Ms Konopka was eligible to receive DSP from the date of her claim on 28 March 2014. That Tribunal accordingly set aside the decision of Centrelink, and substituted a decision that Ms Konopka satisfied the applicable requirements.

5. However, on 18 August 2014, the Secretary, Department of Social Services (the Secretary) lodged an application with this Tribunal for review of that decision, contending that the SSAT was in error and Ms Konopka did not satisfy the qualification requirements for DSP.

   ISSUE

6. It follows that the issue for me is whether Ms Konopka was qualified for DSP as at the date of her claim on 28 March 2014 or within…