Pignat and Secretary, Department of Social Services (Social services second review) - [2016] AATA 273

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/1572
General Division  )
Re: Adrian Pignat
Applicant

And: Secretary, Department of Social Services
Respondent
CORRIGENDUM
TRIBUNAL:              Deputy President Bernard McCabe
DATE:   3 May 2016
PLACE:                    Brisbane

The Tribunal DIRECTS the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.
1.Remove the words ‘Solicitor for the Respondent’ and replace with ‘Advocate for the Respondent’;
2.Remove the words ‘Nicholas Warren’ and replace with ‘Ashley Burgess’.
.................................[Sgd]..................................
Deputy President

Pignat and Secretary, Department of Social Services (Social services second review) [2016] AATA 273 (29 April 2016)

Division

GENERAL DIVISION

File Number

2015/1572

Re

Adrian Pignat

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

Decision

Tribunal
Deputy President Bernard McCabe

Date 29 April 2016

Place Brisbane
The decision under review is affirmed.

...............................[Sgd]..................................
Deputy President Bernard McCabe
Catchwords
SOCIAL SERVICES – benefits and entitlements – disability support pension – whether applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the relevant time – whether permanent impairments can be allocated 20 points or more under the impairment tables – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President Bernard McCabe
29 April 2016

Mr Adrian Pignat was granted the disability support pension (the DSP) in 2010 after he developed thyroid cancer. The DSP was cancelled on 13 January 2015 following a review in which the applicant’s case was assessed having regard to the impairment tables introduced in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Mr Pignat wants the Tribunal to review that decision.
The Secretary for the Department of Social Services (the Secretary) says Mr Pignat was unable to satisfy the so-called ‘medical criteria’ in s 94(1) of the Social Security Act 1991 (Cth) (the Act) at the time of cancellation. I should emphasise I am not considering whether Mr Pignat would meet the requirements of that sub-section now: his conditions may well have evolved, and subsequent investigations or developments may have impacted on his current level of impairment. I am required instead to focus on his level of impairment at a particular point in time – namely, at the cancellation date - and have regard to evidence that was known or knowable at that time.
The medical criteria
An applicant must satisfy the requirements of the Act to qualify for payment of a social security benefit. Section 94 includes the medical criteria that apply to applicants for the DSP. The first of the requirements, in s 94(1)(a), is that the applicant has a physical, intellectual or psychiatric impairment. That requirement is met here: the Secretary acknowledges Mr Pignat suffers from sleep apnoea, obesity, fatigue, prolapsed discs and disc disease and left leg sciatica. He also suffered from thyroid cancer which resulted in hypothyroidism.
The…

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: Pignat and Secretary, Department of Social Services (Social services second review) [2016] AATA 273
Case: [2016] AATA 273
Decision Date: 3 May 2016

CaseChat Overview and Summary

The applicant, Pignat, sought review of a decision by the Secretary of the Department of Social Services concerning eligibility for a disability support pension. The dispute centred on whether the applicant's impairments met the threshold for receiving the pension under the relevant legislation. The matter was heard by Deputy President Bernard McCabe of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant's impairments were fully diagnosed, fully treated, and fully stabilised at the relevant time, and whether permanent impairments could be allocated 20 points or more under the applicable impairment tables. This determination was crucial for satisfying the criteria stipulated in section 94(1)(b) of the Social Services Act.

Deputy President McCabe reasoned that the applicant could not be allocated at least 20 points under the impairment tables, thereby failing to meet the criteria in section 94(1)(b) of the Act. Consequently, the Tribunal found it unnecessary to consider whether the applicant met the additional requirement of experiencing a continuing inability to work. The decision under review was therefore affirmed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In summary, I am satisfied the applicant cannot be allocated at least 20 points under the impairment tables. That means he is unable to satisfy the criteria in s 94(1)(b) of the Act.Conclusion The applicant’s claim cannot succeed because he does not satisfy the requirement in s 94(1)(b). There is no need for me to consider whether he is able to meet the additional requirement of experiencing a continuing inability to work. The decision under review must be affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL DIVISION
File Number	2015/1572
Re	Adrian Pignat
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Deputy President Bernard McCabe
Date	29 April 2016
Place	Brisbane