QMJL and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1841

QMJL and Secretary, Department of Social Services (Social services second review) [2020] AATA 1841 (18 June 2020)
Division: GENERAL DIVISION
File Number: 2019/3996
Re: QMJL
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:18 June 2020
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension with effect from 4 September 2018.
.....[sgd]...................................................................
Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – several conditions including gastritis and anxiety with agoraphobia and depression – whether fully diagnosed, treated and stabilised – qualification period – medical appointments after qualification period – self-reporting – JCA report – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth)
Cases
Control Investments Pty Ltd and Australian Broadcasting Tribunal [1980] AATA 78
Eid and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Muir and Department of Employment and Workplace Relations [2005] AATA 902
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Uebergang and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
18 June 2020
BACKGROUND

The Applicant, who has been anonymised, is aged 54 and she lives at home with her adult daughter. QMJL, the Applicant, applied for the Disability Support Pension (“DSP”) on 4 September 2018.
Her application was rejected by a decision made by Centrelink on 20 December 2018.
The Applicant then sought internal review of that decision, but it was affirmed by an Authorised Review Officer on 7 March 2019.
Then the Applicant sought review of the decision by the Social Services and Child Support Division of this Tribunal (“Tier 1”), but on 14 June 2019 the decision was affirmed.
The Applicant now seeks review of the decision by this Division of the Tribunal.
HEARING
A hearing in this matter was conducted on 24 January 2020. The Applicant was represented by her daughter (Ms L) and the Respondent was represented by Mr S Reeves, lawyer, from the Australian Government Solicitor.
The Applicant gave sworn evidence as did her daughter and Mr Reeves asked questions in cross examination of both.
Dr Raja Paul, general practitioner, gave affirmed evidence by telephone on behalf of the Applicant and was cross examined by Mr Reeves.
A report by Dr Paul dated 3 January 2020 together with two Witness Statements – one by the Applicant and another by her daughter (both dated 14 January 2020) – were also received into evidence.
Further, the Tribunal had before it the T-documents in the matter together with Supplementary T-documents and they were both received into evidence. The Tribunal was also provided with Statements of Facts, Issues and Contentions by both parties.
The Tribunal reserved its Decision at the close of the hearing but allowed the parties to lodge…

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: QMJL and Secretary, Department of Social Services (Social services second review) [2020] AATA 1841
Case: [2020] AATA 1841
Decision Date: 18 June 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the eligibility of the applicant, QMJL, for a disability support pension against the Secretary of the Department of Social Services. The dispute centred on whether QMJL met the criteria for the pension, specifically concerning the diagnosis, treatment, and stabilisation of several medical conditions, including gastritis, anxiety, agoraphobia, and depression, during the relevant qualification period.

The Tribunal was required to determine whether QMJL had a continuing inability to work, as stipulated by section 94(1)(c) of the relevant Act, and whether all statutory requirements for the disability support pension were met. This involved assessing the applicant's medical conditions, the adequacy of their treatment, and their stability during the qualification period, as well as considering medical reports and self-reporting.

The Senior Member was satisfied on the balance of probabilities that QMJL met the criteria in section 94(1) of the Act, finding that the applicant had, and had had at all material times including during the qualification period, a continuing inability to work. Consequently, the Tribunal set aside the decision under review and substituted a new decision reflecting these findings.

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

I am quite satisfied, by reason of the foregoing, that the Applicant satisfies s 94(1)(c) of the Act – she has, and has had at all material times including during the qualification period, a continuing inability to work.CONCLUSION For the reasons I have given I am satisfied on the balance of probabilities that the Applicant meets the criteria in s 94(1) and otherwise satisfies all statutory requirements for DSP. It follows that the decision under review must be set aside and a decision substituted reflecting these reasons.

Ratio Decidendi

Legal Principle Established

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