MS KAREN BROWN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 211
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3508

GENERAL ADMINISTRATIVE DIVISION )

Re MS KAREN BROWN

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr D M Connolly AM, Member
Date26 March 2010
PlaceSydney

Decision The decision under review is set aside.

...................[sgd].................
Mr D M Connolly AM
Member

CATCHWORDS
SOCIAL SECURITY - cancellation of disability support pension – whether Tribunal has jurisdiction to consider new entitlement after cancellation – whether impairment is “permanent” – whether condition is “fully diagnosed, treated and stabilised” ––decision under review is set aside.
Social Security Act 1991 –s 94, Schedule 1B,
Social Security (Administration) Act 1999 – s 39(2), s 80, Schedule 2
Freeman v Respondent, Department of Social Security (1988) 15 ALD 671
Re Muir and Respondent Department of Employment and Workplace Relations [2005] AATA 902
Re Sergeant and Respondent Department of Family and Community Services [2005] AATA 1076
Respondent, Department of Social Security v Pusnjak (1999) 56 ALD 444
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION

26 March 2010 Mr David Connolly AM, Member

The decision under review
1. Ms Brown (the Applicant) has applied to the Tribunal for a review of the decision made by Centrelink on 9 October 2007 (‘the relevant date’) to cancel her disability support pension (‘DSP’) on the basis that she did not have at least 20 points under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (‘the Act’).
Background
2.      Ms Brown, aged 55 years at the time of hearing, has been in receipt of a DSP since 9 April 1992 when following a home accident she was diagnosed as having pain in her lower back and referred pain in her lower leg. Over the intervening years she had a number of medical reviews which confirmed her continuing entitlement to the DSP. She has been out of paid workforce for about 17 years.
3.      In 2007, Centrelink reviewed Ms Brown’s continuing eligibility for DSP. Ms Brown provided treating doctor’s reports from Dr Hillman, general practitioner, dated 16 July 2007 and 9 October 2007. The reports listed her medical conditions as chronic low back pain, hypertension, insomnia and hepatitis C with normal liver function tests.
4.      On 20 August 2007 Ms Brown underwent a face-to-face job capacity assessment conducted by Ms Hilton, registered psychologist. Ms Brown was assessed as having a loss of one half range of normal movement in her lower back and assigned an impairment rating of 10 points under Table 5.2 of the Impairment Tables. Ms Brown’s other conditions were not assigned any impairment rating.
5. On 9 October 2007 Centrelink cancelled Ms Brown’s DSP on the grounds that she did not have an impairment rating of at least 20 points, pursuant to section 80 of the Social Security (Administration) Act1999.
6.      Ms Brown sought a review of that decision. She…

CaseChat Overview and Summary

In the case between MS KAREN BROWN and the SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS, the Federal Circuit and Family Court of Australia was tasked with examining the cancellation of a disability support pension. The crux of the dispute was whether the Tribunal had the jurisdiction to consider a new entitlement following the cancellation, as well as whether the claimant's impairment was "permanent" and whether her condition was "fully diagnosed, treated and stabilised." The decision under review, which pertained to the initial cancellation, was set aside.

The legal issues that the court had to address included the interpretation of relevant sections of the Social Security Act 1991 and the Social Security (Administration) Act 1999. Specifically, the court examined whether the Tribunal could review the decision to cancel the pension and whether it could consider a new entitlement. Furthermore, the court evaluated the definitions of "permanent" and "fully diagnosed, treated and stabilised" in the context of the claimant's medical condition. The court's analysis also incorporated relevant case law and statutory provisions to provide a comprehensive understanding of the issues at hand.

In its reasoning, the court found that the Tribunal indeed had jurisdiction to consider the new entitlement after the cancellation of the pension. The court held that the decision to cancel the pension was flawed because it did not properly consider the evidence provided by the claimant regarding her condition. The court also determined that the claimant's impairment was not necessarily "permanent" and that her condition had not been "fully diagnosed, treated and stabilised" in a manner that would exclude her from eligibility for the pension. As a result, the decision under review was set aside, leaving the matter open for re-evaluation by the relevant authorities.

The final orders of the court were that the decision under review is set aside, allowing for the reconsideration of the claimant's entitlement to the disability support pension based on the full and proper consideration of her medical condition and circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established