McKane and Secretary, Department of Employment and Workplace Relations - [2006] AATA 1010

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1010
ADMINISTRATIVE APPEALS TRIBUNAL № V2006/64
GENERAL ADMINISTRATIVE DIVISION

Re: DIANNE McKANE
Applicant

And:SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent

DECISION
Tribunal: Dr K. Breen, Member
Date:27 November 2006
Place:Melbourne
Decision:The decision under review is affirmed.

(sgd) Kerry Breen
Member

SOCIAL SECURITY – disability support pension (DSP) – DSP granted after the Social Security Appeals Tribunal decision – whether back payment possible – start date – whether applicant eligible for DSP at time of original claim or within 13 weeks – whether condition fully investigated, treated and stabilised at time of original claim or within 13 weeks ‑ decision affirmed.
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 Schedule 2
Guide to Social Security Law
Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076
Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
REASONS FOR DECISION
27 November 2006  Dr K. Breen, Member
DECISION UNDER REVIEW
1.      Mrs Dianne McKane lodged a claim for disability support pension (DSP) on 10 June 2005. This claim was rejected by a Centrelink officer on 15 July 2005 on the grounds that her condition had not been fully investigated, treated and stabilised. Centrelink is the agency that acts on behalf of the Secretary to the Department of Employment and Workplace Relations (the respondent). A Centrelink authorised review officer affirmed the original decision on 2 November 2005. Mrs McKane appealed to the Social Security Appeals Tribunal (SSAT), which affirmed the decision on 6 January 2006. Mrs McKane then applied to this Tribunal for a review of the decision of the SSAT.
2.      In the interim, Centrelink, in response to an updated work capacity assessment conducted on 7 June 2006, invited Mrs McKane to test her eligibility again for DSP and as a result she was granted DSP, effective from 28 June 2006. Therefore, the only issue before the Tribunal is whether Mrs McKane is entitled to back payment of DSP from the date of her original expression of intention to claim, which was 1 June 2005.
3. The requirements for qualification for DSP (prior to July 2006) are set out in s 94 of the Social Security Act 1991 (the Act). The relevant parts are as follows:
94(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…

(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…

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: McKane and Secretary, Department of Employment and Workplace Relations [2006] AATA 1010
Case: [2006] AATA 1010
Decision Date: 27 November 2006

CaseChat Overview and Summary

Dianne McKane applied for a disability support pension (DSP) on 10 June 2005, which was rejected by Centrelink on 15 July 2005. The rejection was affirmed by an authorised review officer and the Social Security Appeals Tribunal (SSAT). McKane appealed the SSAT decision to the Administrative Appeals Tribunal (AAT). In the interim, a work capacity assessment conducted on 7 June 2006 resulted in Centrelink granting McKane DSP, effective from 28 June 2006. The AAT was asked to determine whether McKane was entitled to back payment of DSP from 1 June 2005. The AAT considered whether, at 10 June 2005 or within 13 weeks thereafter, McKane had a physical impairment, her condition had been investigated, treated and stabilised and she had an impairment rating of 20 points or more. The AAT also considered whether McKane had a continuing inability to work because of the impairment. The AAT found that while McKane had a physical impairment, her condition had not been investigated, treated and stabilised. As such, the AAT affirmed the decision under review.

Orders