Lokanc and Secretary, Department of Social Services (Social services second review) - [2016] AATA 195

Lokanc and Secretary, Department of Social Services (Social services second review) [2016] AATA 195 (22 March 2016)

Division

GENERAL DIVISION

File Number

2015/5004

Re

Franjo Lokanc

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date of decision 22 February 2016

Date of written reasons 31 March 2016

Place Melbourne
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

[sgd]........................................................................
Egon Fice, Senior Member
DISABILITY SUPPORT PENSION – continuing inability to work – severe impairment –impairment rating – applicant allocated 20 impairment points under two impairment tables – program of support – no active participation in program of support – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Schedule 2 Clauses 3 and 4
Social Security (Active Participation for Disability Support Pension) Determination 2014 Clauses 5 and 7
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Clauses 5 and 6
REASONS FOR DECISION
Egon Fice, Senior Member
31 March 2016

On 16 March 2015 Mr Lokanc lodged an application with the Department of Human Services (Centrelink) for payment of the Disability Support Pension (DSP). In fact, Mr Lokanc first contacted Centrelink by telephone 2 February 2015 indicating his intention to claim the DSP. In a letter dated 11 February 2015, Centrelink informed Mr Lokanc that if he wished to receive his payment from the earliest possible date, he was required to return his claim on or before 16 February 2015. Clearly this did not occur. Therefore, the effective date of Mr Lokanc’s claim for the DSP is 16 March 2015.
On his claim form Mr Lokanc said he suffered from multilevel lumbar disc injury; major depression; gastritis; anaemia; and diabetes.
Mr Lokanc underwent a job capacity assessment conducted by a Job Capacity Assessor (JCA) who submitted a report dated 28 May 2015. The JCA determined that Mr Lokanc’s spinal disorder and depression had been fully diagnosed, fully treated and fully stabilised. She recommended a rating of 10 impairment points for each of those conditions. While the JCA noted that his gastroenterological condition was fully diagnosed, fully treated and fully stabilised, no impairment points were recommended because it resulted in no functional impact on Mr Lokanc. The JCA did not make an assessment of his anaemia or diabetes conditions.
On 2 June 2015 Centrelink informed Mr Lokanc that he was not eligible for the DSP. That was because he had not actively participated in a program of support (POS). Mr Lokanc sought review of that decision by an Authorised Review Officer (ARO).
In a decision dated 18 June 2015 the ARO determined that although Mr Lokanc had a total impairment rating of 20 points, he did not have a severe impairment which is defined in the Social Security Act 1991 (the Social Security Act) as an impairment which is rated at 20 points or more under a…

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: Lokanc and Secretary, Department of Social Services (Social services second review) [2016] AATA 195
Case: [2016] AATA 195
Decision Date: 31 March 2016

CaseChat Overview and Summary

The case involved Mr Lokanc, who was challenging a decision by the Department of Social Services to deny him the Disability Support Pension (DSP). The dispute centred on the assessment of Mr Lokanc's impairment and whether he met the qualifying criterion for the DSP under section 94 of the Social Security Act, which requires a continuing inability to work due to a severe impairment. The matter was heard and determined by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the court was whether Mr Lokanc's medical conditions warranted an allocation of impairment points that would qualify him for the DSP. Specifically, the court had to consider whether Mr Lokanc's impairment warranted more than 20 points under the impairment tables, and whether his lack of active participation in a program of support precluded him from satisfying the qualifying criterion. The court also had to consider if Mr Lokanc's medical conditions had deteriorated since the initial assessment by the Joint Centre of Assessment (JCA), potentially affecting the allocation of impairment points.

In determining the matter, the court noted that Mr Lokanc's medical conditions might have worsened since the JCA's assessment, potentially warranting a higher impairment rating. However, the court emphasised that such a claim would need to be supported by current medical reports. Furthermore, the court highlighted that Mr Lokanc could either lodge a fresh application for the DSP with updated medical evidence or actively participate in a program of support for 18 months before making a new claim. Given that Mr Lokanc had not satisfied either of these criteria at the time of the hearing, the court found that he did not meet the qualifying criterion for the DSP.

The court affirmed the decision of the AAT, which had previously determined that Mr Lokanc did not qualify for the DSP. The court concluded that, as of the date of the hearing, Mr Lokanc did not meet the qualifying criterion for the DSP, and thus, the decision by the AAT on 9 September 2015 was correct.

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

As I explained at the hearing of this matter, Mr Lokanc’s medical conditions may have worsened since the JCA conducted her assessment and if so, it may be that in fact he should be allocated more impairment points under a single table for one or both of his medical conditions. If that is the case, I suggested to Mr Lokanc that he could lodge a fresh application for the DSP but that he would need current medical reports to support his claim. That is because, as I have indicated above, that claim must be assessed between the date it is made and the following 13 weeks only. Alternatively, Mr Lokanc could enrol in a program of support and actively participate in that program for 18 months before lodging a fresh claim.CONCLUSION Mr Lokanc does not satisfy the qualifying criterion set out in s 94 of the Social Security Act which requires a person to have a continuing inability to work. Mr Lokanc can only satisfy that criterion if he has at least 20 impairment points allocated under one of the Impairment Tables, or he has actively participated in a program of support for 18 months in the three-year period prior to lodging an application for the DSP. As at the date of hearing this matter, Mr Lokanc did not satisfy that qualifying criterion. The decision made by AAT1 (Social Services & Child Support Division) on 9 September 2015 was the correct decision. I affirm that decision.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2015/5004
Re	Franjo Lokanc
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date of decision	22 February 2016
Date of written reasons	31 March 2016
Place	Melbourne