Oliver; Secretary, Department of Social Services and (Social services second review) [2015] AATA 593 (14 August 2015)
Division
GENERAL DIVISION
File Number
2014/6158
Re
Secretary, Department of Social Services
APPLICANT
And
Gary Oliver
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 14 August 2015 Place Perth During the Relevant Period, the Applicant had a lower limb impairment. He thus meets the requirements of section 94(1)(a) of the Social Security Act 1991.
The Applicant’s conditions giving rise to his lower limb impairment were not fully treated and fully stabilised during the Relevant Period. As such, no impairment rating on the Impairment Tables can be assigned to any functional impairment to the Applicant’s lower limbs.
Had the Tribunal found that the Applicant’s impairments were fully diagnosed, fully treated and fully stabilised during the Assessment Period, the appropriate impairment rating would be 10 points under Table 3 – not 20 points.
In the circumstances, the Applicant does not satisfy the requirements of section 94(1)(b) of the Social Security Act 1991.
The Applicant does not have a continuing inability to work. He is not prevented by his impairments from undertaking any work of at least 15 hours per week. Nor is he prevented from undertaking a training activity.
As such, the Applicant does not satisfy the requirements of section 94(1)(c) of the Social Security Act 1991.
The decision under review is set aside. In substitution, it is found that the Applicant does not qualify for DSP.
..........................[sgd].......................................
Deputy President Dr Christopher Kendall
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – meaning of "the Relevant Period" - whether there is a physical, intellectual or psychiatric impairment - whether impairment is of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991- whether Applicant has a continuing inability to work – decision under review set aside
LEGISLATION
The Social Security Act 1991 (Cth) – 94(1)(a) – 94(1)(b) – 94(1)(c) – 94(2) – 94(3)(a) –94(3)(b) – 94(5)
The Social Security (Administration) Act 1999 (Cth) - Schedule 2
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - 6(3) – 6(4) – 6(5) – 6(6) – 6(7) – 11(1)(c) – Table 2 – Table 3
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
CASES
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
DECISION
Tribunal Deputy President, Dr Christopher Kendall
Date 14 August 2015 Place Perth The decision under review is set aside. In substitution, it is found that Mr Oliver does not qualify for DSP.
BACKGROUND
Gary Oliver was injured in a boating accident on 27 September 2013. He sustained injuries to both legs. Mr Oliver’s left lower leg was surgically amputated and he underwent right foot reconstruction.
On 13 December 2013, Mr Oliver lodged a claim for a disability support pension (“DSP”).
On 6 January 2014, Mr Oliver attended a job capacity assessment conducted by an occupational therapist (T7, at…
- AGLC
- Oliver; Secretary, Department of Social Services and (Social services second review) [2015] AATA 593
- Case
- [2015] AATA 593
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether the applicant had a physical, intellectual, or psychiatric impairment that met or exceeded 20 points on the Impairment Tables in Schedule 1B of the Social Security Act 1991, and whether he had a continuing inability to work. Additionally, the court had to determine whether the applicant's impairments were fully diagnosed, treated, and stabilised during the relevant period, as this would affect the applicable impairment rating.
The AAT found that during the Relevant Period, the applicant had a lower limb impairment, thus meeting the requirements of section 94(1)(a) of the Social Security Act 1991. However, the applicant's conditions were not fully treated and stabilised during this period, which precluded the assignment of an impairment rating on the Impairment Tables. If the applicant's impairments had been fully diagnosed, treated, and stabilised, the appropriate impairment rating would have been 10 points, not 20 points. Consequently, the applicant did not satisfy the requirements of section 94(1)(b) of the Act. Furthermore, the applicant was not prevented by his impairments from undertaking any work of at least 15 hours per week or a training activity, meaning he did not meet the criteria of section 94(1)(c) of the Act.
Ultimately, the decision under review was set aside, and it was determined that the applicant did not qualify for DSP.
Orders
Orders of the court
During the Relevant Period, the Applicant had a lower limb impairment. He thus meets the requirements of section 94(1)(a) of the Social Security Act 1991.
The Applicant’s conditions giving rise to his lower limb impairment were not fully treated and fully stabilised during the Relevant Period. As such, no impairment rating on the Impairment Tables can be assigned to any functional impairment to the Applicant’s lower limbs.
Had the Tribunal found that the Applicant’s impairments were fully diagnosed, fully treated and fully stabilised during the Assessment Period, the appropriate impairment rating would be 10 points under Table 3 – not 20 points.
In the circumstances, the Applicant does not satisfy the requirements of section 94(1)(b) of the Social Security Act 1991.
The Applicant does not have a continuing inability to work. He is not prevented by his impairments from undertaking any work of at least 15 hours per week. Nor is he prevented from undertaking a training activity.
As such, the Applicant does not satisfy the requirements of section 94(1)(c) of the Social Security Act 1991.
The decision under review is set aside. In substitution, it is found that the Applicant does not qualify for DSP.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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