Perrett; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1674

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1674

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3097

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And GEORGE PERRETT

Respondent

INTERLOCUTORY DECISION

Tribunal Associate Professor B W Davis AM

Date17 August 2007

PlaceHobart

Decision Pursuant to Section 41(2) of the Administrative Appeals Tribunal Act 1975, I hereby order that the decision of the Social Security Appeals Tribunal dated 1 June 2007 be stayed pending finalisation of the application for review.

(Sgd) B W Davis AM

Part-Time Member

CATCHWORDS

Social Security - disability support pension (DSP) - resident of Malta - eligibility - claimed disabilities - hypertension, depression and anxiety - lower limbs condition - upper limbs and back - degree of impairment - inability to work - Social Security Appeals Tribunal decision - review by AAT

LEGISLATION

Social Security Act 1991 and Amendments, Section 94 and Schedule 1B – Tables for the Assessment of Work-Related Impairment for Disability Support Pension

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999, Schedule 6 – Agreement on Social Security between the Government of Australia and Government of Malta

Guide to Social Security Law

AUTHORITIES

Commonwealth Banking Corporation and Ionnello (1998) 15 ALD 418

Re  Dart and DGSS (1982) 4 ALD 553

Re  Repatriation Commission and Delkou (1985) 8 ALD 454

Watts and SDFCS (2003) AATA 632

Re  Crossland and SDFCS (2004) AATA 864

Gordon v SDFCS (1998) AATA 13528

REASONS FOR INTERLOCUTORY DECISION

17 August 2007 Associate Professor B W Davis AM        

1.      Secretary, Department of Employment and Workplace Relations (DEWR) has sought a stay of the decision of the SSAT dated 1 June 2007, setting aside Centrelink’s decision of 31 January 2007 to reject the respondent’s claim for disability support pension (DSP).

2.      In deciding whether it is appropriate to grant the stay, the interests of the parties are relevant considerations (Commonwealth Banking Corporation and Iannello (1999) 15 ALD 418).

3.      The applicant DEWR claims there are three issues to be considered:

(a)The Respondent (George Perrett) might suffer financial hardship if the Department succeeded in its appeal against the SSAT decision, since all of the DSP he received between the date of the SSAT decision and the eventual AAT decision would have to be repaid.  This might amount to a substantial sum.

(b)DEWR considered the SSAT had made an error of law, in failing to recognise that amendment of the Act in 2005 now required applicants for DSP to demonstrate they were severely disabled, rather than having 20 points or more of impairment.

(c)DEWR was confident they would succeed in their appeal and it was by no means certain that if this occurred, they would be able to recover debts incurred overseas.  On the merits of the case, the potential loss of taxpayer dollars and the need to ensure a sound and proper basis for final AAT determination, a stay is appropriate at this stage of proceedings.

4.      Counsel for the respondent (Mr Chris Rice) claimed the SSAT decision was properly made and Mr Perrett was therefore currently entitled to receive DSP.  He needed the money for medical expenses and high costs of living in Malta and was prepared to take the risk of receiving DSP now.  He considered he had good prospects of a successful appeal against the decision to cancel his DSP.  If a debt subsequently arose he would meet instalments from his Maltese pension and his wife’s Australian DSP.  The risk to taxpayers was small.  Mr Perrett’s daughter (Mrs Angele Fell) gave evidence on behalf of her father and argued any debt owing to the Commonwealth would be repaid by instalments deducted from their pensions.

5.      Responding to questions put by counsel for the applicant (Mr Brian Sparkes), it became clear that the Perrett’s financial resources were limited, relative to the ongoing need to pay instalments on home purchase from Mr Perrett’s relatives and the high cost of living in Malta.  Mr Perrett’s daughter indicated her father could not afford physiotherapy sessions he required and his medications were expensive and sometimes omitted or rationed.  She stressed that medical reports all indicated Mr Perrett was severely disabled and unable to work, hence grant of DSP was essential.

6.      Have considered all of the evidence the Tribunal has decided on balance the stay should be granted for the following reasons:

(a)The Department did not advance any suggested time limit for the stay, but indicated that after receiving a job assessment report they would try to bring the matter to hearing as soon as possible.  The respondent indicated they were seeking further medical reports but would also try to progress to a hearing as soon as possible.

(b)DEWR is confident that their appeal will succeed.  The respondent appears equally confident but may not have realised the implications of now having to demonstrate in medical evidence that Mr Perrett was severely disabled at the relevant time.  A stay will permit time for the respondent to reassess his case.

(c)Mr Perrett (via his daughter Mrs Fell) has indicated willingness to bear risk if he accepts DSP now, but subsequently a debt is raised against him.  However, the Perrett’s financial resources are already stretched and despite their good intentions may not be able to ensure repayments.  DEWR correctly identifies this as a risk to the Australian taxpayer, if international default occurs.

(d)In the view of the Tribunal a stay may be as advantageous the respondent as to the applicant, however the Tribunal considers it in the interests of both parties that the matter is progressed to full AAT hearing as soon as possible.

DECISION

7.      The stay is granted.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: H Healy (Administrative Assistant)

Date/s of Hearing  14 August 2007
Date of Decision  17 August 2007
Counsel for the Applicant         Mr Brian Sparkes
Solicitor for the Applicant          Centrelink Legal Services
Counsel for the Respondent     Mr Chris Rice
Solicitor for the Respondent     Hobart Community Legal Service