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

[2019] AATA 5639

Nedeljkovic and Secretary, Department of Social Services (Social services second review) [2019] AATA 5639 (11 December 2019)

Division: GENERAL DIVISION

File Number:           2019/5059

Re: Borislav Nedeljkovic

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:11 December 2019

Date of Written Reasons:      7 January 2020

Place:Melbourne

The Tribunal affirms the decision under review

........................[sgd]...........................................

Dr Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension— whether decision under review should be affirmed — termination of hearing by Applicant — decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

WRITTEN REASONS FOR DECISION

Dr Damien Cremean, Senior Member

7 January 2020

1. The Applicant, Mr Borislav Nedeljkovic, has requested written reasons for the oral decision I gave on 11 December 2019.

2. The reasons for decision follow my perusal of the Transcript of the hearing and are substantially the same as those which appear there.

3. The Applicant sought review of the decision dated 13 August 2019 made by the Social Services & Child Support Division (‘Tier 1’) of this Tribunal. Tier 1 affirmed the decision of the Centrelink authorised review officer which rejected the Applicant’s claim for Disability Support Pension (‘DSP’).

4. DSP is granted under the provisions of the Social Security Act 1991 (Cth) (‘Act’) if the conditions specified in s 94 of the Act are satisfied.

5. At the hearing conducted on 11 December 2019 the Applicant represented himself and the Respondent was represented by Mr A. Quanchi, lawyer, assisted by Mr T. Noonan, lawyer also.

6. The Applicant gave affirmed evidence by telephone at the hearing which included evidence about his various medical conditions. Those medical conditions appeared to include heart disease, diabetes, hypertension, peripheral vascular disease, anxiety, depression and stroke.

7. It was pointed out to the Applicant that, under the Act, I was concerned with his state of health in relation to those conditions for the 13 week period from 10 October 2018 (‘qualification period’), which was the date on which he lodged his claim for DSP.

8. Amongst the ‘T Documents’ lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were a number of medical reports relating to the Applicant and there were also medical reports post-dating the qualification period.

9. The Applicant upon questioning said he was a single man aged 63 years living on his own in public housing and without any children. He said he was not working.

10.The Applicant asked to be allowed to make a statement which I agreed to allow.

11.The Applicant then made a rambling lengthy statement seeking to justify, amongst other things, an award of 20 points (under what are known as the Impairment Tables---being those in force by the Social Security (Tables for the Assessment of Work –related Impairment for Disability Support Pension) Determination 2011(Cth)) for his mental condition. He then went on to discuss point awards for his other conditions. He referred to various reports–including and especially that of Dr Kenneth Preiss, psychologist, dated 28 January 2019 and a letter from Dr Rashmi Saluja dated 18 November 2019. I was unable to follow much of the evidence given to this point by the Applicant and, accordingly, I sought to ask him questions about it and about his claimed conditions—having pointed out to him that the letter of Dr Saluja was dated about 10 months after the end of the qualification period.

12.The Applicant then said that ‘I’ve got to stop, my heart is getting berserk’ adding ‘please, I’ve got to stop talking’.

13.The Applicant then said ‘I don’t want to listen to you more and I’m not going to listen to you because you’re saying something which is upsetting me a lot’.

14.After this I asked the Applicant ‘Are you going to terminate the conversation, are you?’—he replied ‘Yes’ and then hung up.

15.The Applicant did not ask for an adjournment and in the circumstances I did not consider I should press him about one because he seemed to be in considerable distress—so much so that I thought that asking him that question could itself distress him even further.

16.Being unable to follow much of the Applicant’s evidence, and noting much of it in documentary form post-dated the qualification period, I was unable to make any finding that the decision under review was not the correct one under the Act.

17.That being so, I had little or no evidence before me that would support a decision other than to affirm the decision under review, there being no need for the Respondent to address me.

18.The decision under review was therefore affirmed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the written reasons for the decision herein of Dr Damien Cremean, Senior Member.

...............[sgd].............................

Associate

Dated: 7 January 2020

Date of hearing:	11 December 2019
Advocates for the Applicant:	Self-Represented
Solicitors for the Respondent:	Mr A. Quanchi Mr T. Noonan Department of Human Services