Re Kirvan and Secretary, Department of Social Services

[2014] AATA 721

Smolski and Secretary, Department of Social Services (Social services second review) [2017] AATA 13 (4 January 2017)

Division	GENERAL DIVISION
File Number	2016/0040
Re	Paul Smolski
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	4 January 2017
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]....................................................................

D. J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – not qualified for DSP – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 cl 4 of Schedule 2

Secondary Materials

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases
Re Kirvan and Secretary, Department of Social Services [2014] AATA 721

REASONS FOR DECISION

Mr D. J. Morris, Member

4 January 2017

BACKGROUND DATES AND EVENTS

1. The Applicant, Mr Paul Smolski, applied for Disability Support Pension (DSP) on 22 December 2014.

2. The Department of Social Services (the Department) rejected Mr Smolski’s claim on 9 February 2015.

3. He sought a review of that decision by an Authorised Review Officer (ARO), an officer of the Department who was not involved in the original decision. 

4. On 18 May 2015 the ARO affirmed the original decision, on the grounds that the Applicant was not medically qualified for DSP.

5. Mr Smolski then applied to the Social Services and Child Support Division of the Tribunal (AAT1).  After a hearing, on 26 November 2015 the Tribunal affirmed the original decision.

6. The Applicant then lodged an application for a second-tier review in the General Division.

7. The hearing was held on 16 November 2016.  The Applicant gave evidence and was cross-examined.  Mrs Diane Smolski was present as Mr Smolski’s advocate, and she made submissions and gave evidence.  The Respondent was represented by Mr James Henderson. 

8. The Respondent submitted documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), which were admitted into evidence.

9. The Applicant submitted the following documents which were admitted into evidence:

   ·Medical letter dated 9 May 2016 from Dr Russell Buchanan to Dr Brian Stewart (Exhibit A1).

   ·Medical certificate dated 9 April 2016 from Dr Ferdinandus Pranadi (Exhibit A2).

   ·Letter from Mrs Diane Smolski lodged with the Tribunal on 20 June 2016 (Exhibit A3).

10. After the hearing, in compliance with a Direction, the Applicant submitted the following documents on 23 November 2016:

    ·Letter dated 22 November 2016 from Mrs Diane Smolski and Mr Paul Smolski (MFI-A1).

    ·Letter undated from Samanthah Kavanagh, MatchWorks (MFI-A2).

    ·Letter from Samanthah Kavanagh, MatchWorks, with handwritten annotation from Dean Crewther, site manager, dated 17 November 2016 (MFI-A3).

    ·Centrelink Employment Pathway Plan for Paul Smolski dated 11 October 2012 (MFI-A4).

    ·Centrelink Employment Pathway Plan for Paul Smolski dated 7…