Lokanc v Secretary, Department of Social Services

[2016] FCA 1134

FEDERAL COURT OF AUSTRALIA

Lokanc v Secretary, Department of Social Services [2016] FCA 1134

Appeal from:	Lokanc v Secretary, Department of Social Services [2016] AATA 195
File number:	VID 208 of 2016
Judge:	NORTH J
Date of judgment:	1 September 2016
Legislation:	Social Security Act 1991 (Cth) s 94
Date of hearing:	1 September 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms C Tipene
Solicitor for the Respondent:	Sparke Helmore

ORDERS

VID 208 of 2016

BETWEEN:

FRANJO LOKANC

Appellant

AND:

SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE:	NORTH J
DATE OF ORDER:	1 SEPTEMBER 2016

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal made on 22 February 2016 is set aside. 

2.The matter is remitted to the Administrative Appeals Tribunal for determination in accordance with law.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J:

1. Before the Court is an appeal from a decision of the Administrative Appeals Tribunal made on 22 February 2016. The appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). Such an appeal is limited to questions of law. The Tribunal affirmed a first review decision of the Administrative Appeals Tribunal to refuse Mr Franjo Lokanc’s application for a Disability Support Pension (DSP).

2. The Tribunal exercised a power to review the first review decision under s 179 of the Social Security (Administration) Act 1999 (Cth) (the SSA Act).

3. Section 94 of the Social Security Act 1991 (Cth) (the SS Act) relevantly provides as follows:

   (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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

   …

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

   (a)in all cases--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)in all cases--either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next…