SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal
Mr SC Fisher, Member
Date29 August 2005
PlaceBrisbane
Decision
The Tribunal affirms the decision under review.
....................[Sgd].....................
SC Fisher Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – s94(1) Social Security Act - meaning of work under Social Security Act - disability support pension received for a period of time before cancellation – inability to work – Schedule 1B Impairment Tables – oral decision given - Decision Affirmed
Social Security Act 1991 ss 94(1)(a), 94(1)(b), 94(1)(c) schedule 1B
Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632
WRITTEN REASONS FOR ORAL DECISION
19 September 2005
Mr SC Fisher, Member
Introduction and background
1. At all material times, Mr Stephen Muir (the applicant) was in receipt of disability support pension payable by Department of Family and Community Services (the respondent). The respondent granted the applicant disability support pension in 1998 on the basis that he was assessed as having an impairment rating of 30 points under the Impairment Tables for a range of medical conditions.
2. On 2 August 2004, a delegate of the respondent made a decision to cancel the applicant’s disability support pension. The backdrop to this decision was that Centrelink initiated a review of the applicant’s circumstances in order to test his continuing eligibility for disability support pension. Internal reviews comprising reconsideration by the original decision maker and an Authorised Review Officer were unsuccessful and did not achieve for the applicant a favourable review of the 2 August 2004 cancellation decision. External review by the Social Security Appeals Tribunal on 14 March 2005 (which decision was notified on 23 March 2005) failed also to secure the applicant a decision in his favour. This led to the applicant seeking review of the decisions below by application to this Tribunal which was received on 21 April 2005.
3. The respondent asked for the oral reasons for decision to be reduced to writing within the scope and effect of section 43(2A) of the Administrative Appeals Tribunal Act 1975. These Reasons for Decision are the reasons given orally at the 29 August 2005 hearing. They have been edited to correct minor errors only and do not incorporate any changes of substance. These Reasons for Decision reflect an extemporaneous account of the decision made on 29 August 2005, and do not…
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
Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Case
[2005] AATA 902
Decision Date
CaseChat Overview and Summary
Re Muir and the Secretary, Department of Employment and Workplace Relations involved an appeal by the applicant, Muir, against a decision of the Secretary regarding his eligibility for disability support pension. The case was heard by the Administrative Appeals Tribunal (AAT). Muir, who had previously been granted a disability support pension, sought to have the decision reviewed due to changes in his medical condition and circumstances.
The central legal issues the Tribunal needed to address were whether Muir's medical condition met the criteria for a disability support pension under the Social Security Act and whether the Secretary's decision was legally sound. Specifically, the Tribunal had to determine if Muir's condition significantly impaired his ability to work and if this impairment was likely to be permanent.
In its decision, the Tribunal found that Muir's medical evidence did not sufficiently demonstrate a significant impairment to his ability to work that would meet the criteria for a disability support pension. The Tribunal considered the medical reports and evidence provided and concluded that while Muir had some impairments, they did not reach the level required by law. The Tribunal found the Secretary's decision to be well-reasoned and supported by the evidence presented.
Consequently, the Tribunal affirmed the decision under review, upholding the Secretary's determination that Muir did not qualify for the disability support pension.