Nguyen and Secretary, Department of Social Services (Social services second review) - [2017] AATA 724

Nguyen and Secretary, Department of Social Services (Social services second review) [2017] AATA 724 (24 May 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2911
Re:Tu Nguyen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:24 May 2017
Place:Sydney

The decision under review is set aside, and I decide, in substitution, that Mr Nguyen was qualified for the DSP at the date of cancellation.
...............[sgd].........................................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – multiple impairments – whether applicant’s medical conditions rated at 20 points or more under Impairment Tables – whether applicant had a continuing inability to work – decision set aside and decision made in substitution
LEGISLATION
Social Security Act 1991 s 94
CASES
Freeman v Department of Social Security (1988) 15 ALD 671
Crossland and Secretary, Department of Family and Community Services (2004) AATA 864
Redmond and Secretary, Department of Employment and Workplace Relations [2007] AATA 1066
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension Determination 2011
REASONS FOR DECISION
Ms N Isenberg, Senior Member
24 May 2017
BACKGROUND

The Applicant, Tu Than Nguyen, commenced proceedings in this Tribunal for a review of a decision to cancel his Disability Support Pension (DSP).
Mr Nguyen received the DSP from 6 December 2007. The decision to cancel his DSP was made on 14 October 2015. The central question is whether he can satisfy the medical criteria in s 94(1) of the Social Security Act 1991 (Cth) (the Act) at the time his DSP was cancelled: per Freeman v Department of Social Security (1988) 15 ALD 671 at 674. That decision was affirmed on internal review and at the first level review by this Tribunal (AAT1).
The first question is whether Mr Nguyen had a physical, intellectual or psychiatric condition: s 94(1)(a) of the Act. The Respondent accepted that Mr Nguyen satisfies that criterion, in that at the date of cancellation he suffered poliomyelitis.
Mr Nguyen also claimed he suffered post-traumatic stress disorder, tuberculosis, stomach problems, right knee problems and an ear problem (which may be tinnitus). Before an allocation of impairment points for these other conditions can occur, I must be satisfied each is fully diagnosed, fully treated, and fully stabilised; otherwise no impairment points can be assigned to the condition.
The next question is whether Mr Nguyen is able to be allocated at least 20 impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension Determination 2011 (the Determination). Each of the claimed conditions is considered in turn.
POLIOMYELITIS (POLIO)
The Applicant, who came to Australia in 1985, gave evidence that he contracted polio when he was about 4 years old. It is clear that he has impairment to the upper and lower limbs as a result of his childhood polio. In a…

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: Nguyen and Secretary, Department of Social Services (Social services second review) [2017] AATA 724
Case: [2017] AATA 724
Decision Date: 24 May 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Nguyen against a decision by the Secretary of the Department of Social Services regarding his eligibility for a disability support pension. The core of the dispute revolved around whether Mr. Nguyen met the medical criteria for the pension, specifically whether his multiple impairments rated at 20 points or more under the relevant Impairment Tables and whether he had a continuing inability to work. The appeal was heard by Ms. N Isenberg, Senior Member.

The primary legal issue before the Tribunal was to determine if Mr. Nguyen satisfied the medical criteria for a disability support pension at the time his pension was cancelled. This required an assessment of his multiple impairments against the Impairment Tables and an evaluation of his continuing inability to work.

The Senior Member found that while there was some ambiguity regarding Mr. Nguyen's caregiving responsibilities for his ex-wife and potential overpayments from Centrelink, these matters were not central to the determination of his eligibility for the disability support pension. Crucially, the Senior Member noted a lack of evidence that might assist in assessing Mr. Nguyen's ability to work. Based on the available information, the Senior Member was satisfied that Mr. Nguyen met the medical criteria stipulated in section 94(1) of the Social Security Act 1991 at the date of cancellation. Consequently, the decision under review was set aside, and a substituted decision was made that Mr. Nguyen was qualified for the disability support pension at that date.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

While there was some evidence about whether the Applicant receives carer pension with respect to his ex-wife, who may also live in the premises he occupies, the Applicant denied that he had provided much at all in the way of care for her. He said after he had confused her medication, he had ceased being her carer, but this appears to be at odds with Centrelink’s current information about payments to him, about which he professed to be ignorant. The Applicant conceded he may have to pay money back to Centrelink, but this, no doubt, will be canvassed elsewhere. Relevantly to the matter at hand, there was no evidence which might assist in relation to his ability to work.DECISION In the circumstances, I am satisfied Mr Nguyen satisfied the medical criteria in s 94(1) of the Act at the date of cancellation. The decision under review is therefore set aside, and I decide in substitution that Mr Nguyen was qualified for the DSP at the date of cancellation.

Ratio Decidendi

Legal Principle Established

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