Neden and Secretary, Department of Employment and Workplace Relations - [2006] AATA 312

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 312
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/685

GENERAL ADMINISTRATIVE DIVISION
)

Re GLEN NEDEN

Applicant

And

SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member
Date5 April 2006
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

………..[Sgd]……….
RG Kenny
Member

CATCHWORDS
SOCIAL SECURITY - disability support pension - physical impairment – impairment rating of 20 points – no continuing inability to work.
Social Security Act 1991 s 94
Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
REASONS FOR DECISION

5 April 2006 Mr RG Kenny, Member

Background
1.      Following a work place accident, Glen Neden (the applicant) has been in receipt of disability support pension, a form of income support which is payable in accordance with the terms of the Social Security Act 1991 (the Act). This continued until 28 June 2005, when a delegate of Centrelink determined that he was no longer qualified to receive the payment. That decision was affirmed by an authorised review officer on 22 August 2005 and, in turn, by the Social Security Appeals Tribunal on 19 October 2005. On 31 October 2005, Mr Neden sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Mr Neden attended the hearing but was not represented. The Secretary, Department of Employment and Workplace Relations (the respondent) was represented by Ms Wallis-Dunn. In evidence were the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
3.      The qualifying requirements for payment of the disability support pension are set out in subsection 94(1) of the Act which, in so far as relevant, reads:
“94. Qualification for disability support pension
(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) …………; and

(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) ………..
(iii) …………

(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 person from doing any work within the next 2 years; and

(b) either:
(i) the impairment is of itself sufficient to prevent the person form undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

(3) In deciding whether or not a person has a continuing…

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: Neden and Secretary, Department of Employment and Workplace Relations [2006] AATA 312
Case: [2006] AATA 312
Decision Date: 5 April 2006

CaseChat Overview and Summary

The matter of Neden versus the Secretary, Department of Employment and Workplace Relations was brought before the Administrative Appeals Tribunal. The applicant, Mr Neden, sought a review of the decision to deny his application for a disability support pension on the basis that he did not satisfy the criteria for a continuing inability to work due to a physical impairment. The Tribunal was required to determine whether Mr Neden's impairment warranted an award of a disability support pension, given his impairment rating of 20 points. The decision was grounded in the interpretation and application of section 94 of the Social Security Act 1991.

The Tribunal considered the relevant legislative provisions and the evidence provided by Mr Neden. The key issue was whether the impairment rating of 20 points was sufficient to establish a continuing inability to work. The Tribunal also examined the case of Re Muir, which provided guidance on the interpretation of the term "inability to work" under the Act. The Tribunal had to balance the objective criteria of the impairment rating against the subjective experience of the applicant's ability to work.

The Tribunal found that, based on the evidence, Mr Neden's impairment rating did not meet the threshold for a continuing inability to work. The Tribunal considered that the 20-point impairment rating was not indicative of a severe enough physical impairment to preclude all work. The Tribunal emphasised that the determination of a continuing inability to work required a holistic assessment of the individual's capacity to engage in work activities. The Tribunal concluded that Mr Neden's impairment, while genuine, did not sufficiently limit his ability to work to the extent required by the Act.

The Tribunal affirmed the decision under review, upholding the Secretary's decision to deny the disability support pension. The Tribunal found that the evidence did not support a finding of a continuing inability to work due to the applicant's physical impairment. The decision was consistent with the interpretation of the relevant statutory provisions and the case law on the matter.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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