Re Triantafillou and Secretary, Department of Family and Community Services - [2003] AATA 56

DECISION AND REASONS FOR DECISION [2003] AATA 56

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/73

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DIMITRIOS TRIANTAFILLOU
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Dr D Weerasooriya, Member

Date21 January 2003
PlacePerth

Decision      The Tribunal sets aside the deicsion of the Social Security Appeals Tribunal that affirmed the decision of the Authorised Review Officer ("ARO") to cancel the applicant's disability support pension and, in substitution therefor, decides that the applicant continues to be qualified for disability support pension.
  …........(sgd D Weerasooriya)...................
  Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment rating – impact on function of two mild mental impairments interacting with each other

Social Security Act 1991 s 94

Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517
Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572

REASONS FOR DECISION

21 January 2003 Dr D Weerasooriya, Member

The Factual Background

The applicant was born on 27 September 1976 and is currently 26 years of age.
The applicant applied for and was granted the Disability Support Pension ("DSP") in 1993 on the basis of an intellectual disability and reduced capacity for independent living.
At the time he was granted DSP in 1993 on 22 December 1993, he was referred to Bizlink by Centrelink. Bizlink is a specialist employment agency funded by the Department of Family and Community Services to assist people with disabilities to secure open employment.
He continued to be supported by Bizlink until 28 October 1998 when Bizlink lost contact with him as he had moved to Darwin. On 20 January 2001 he was re-registered with Bizlink and is currently supported by this agency. (T22, page 109). This agency supplied a report dated 7 February 2002 to the Social Security Appeals Tribunal ("SSAT") at the end of its hearing. This report is in the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") at T22.
In the claim for DSP made in 1993 (T5, page 26), Permanent Medical Conditions were entered as ONE condition – "Learning Difficulties". He was rated for impairment using Table 12 of the Impairment Tables found in Schedule 1B of the Social Security Act 1991 ("the Act"). Based on the difficulty being Borderline – rating 3, Behaviour Not Affected – rating 0, and Capacity for Independent Living – needs help – rating 3, the impairment rating arrived at was 25%. He was found unfit for work in the open market and unfit for any occupational categories for 30 hours per week. His IQ was assessed by the school psychologist as:
·     Verbal                 IQ: 73
·     Performance      IQ: 74
·     Full scale:           IQ: 72

confirming the appropriateness of his placement in Education Support.

On this occasion (in 1993) in an Australian Government Health Service medical and work history report, Dr Thong wrote under the heading 'General Assessment':
"Sixteen year old, borderline intellectual handicap. He has difficulty keeping up…

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.

Continue reading Re Triantafillou and Secretary, Department of Family and Com...

Details

AGLC: Re Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56
Case: [2003] AATA 56
Decision Date: 21 January 2003

CaseChat Overview and Summary

The matter before the court involved the applicant, Mr Triantafillou, who challenged the decision of the Social Security Appeals Tribunal to cancel his disability support pension. The dispute centred around the assessment of Mr Triantafillou's eligibility for the pension, specifically considering the impact of two mild mental impairments on his functional capacity. The court was tasked with reviewing the administrative decision under the Social Security Act 1991.

The primary legal issues the court had to address were whether Mr Triantafillou's impairments met the criteria for a disability support pension under sections 94(1), 94(2)(a), and 94(2)(b)(ii) of the Act. This involved interpreting the statutory provisions and applying the relevant case law, particularly Re Hamal and Secretary, Department of Social Security and Secretary, Department of Social Security v Pusnjak. The court needed to determine if the interaction between the two mild mental impairments sufficiently affected Mr Triantafillou's ability to function, warranting continued eligibility for the pension.

In its decision, the court found that the Tribunal had erred in cancelling Mr Triantafillou's pension. The court emphasised that the interaction between the two mild mental impairments significantly impacted his functional capacity, thereby meeting the criteria for a disability support pension. The decision highlighted the importance of considering the cumulative effect of multiple impairments in assessing eligibility. Consequently, the court set aside the Tribunal's decision and ruled that Mr Triantafillou remains qualified for the disability support pension.

The final orders of the court mandated that the Social Security Appeals Tribunal's decision to cancel the disability support pension be set aside and that Mr Triantafillou's eligibility for the pension be reinstated, effective from the date of the decision. The court's ruling underscored the necessity of a thorough assessment of the interaction between multiple impairments when determining pension eligibility under the Social Security Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant therefore satisfies ss 94(1), 94(2)(a) and 94(2)(b)(ii) of the Act.Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal that affirmed the decision of the ARO to cancel the applicant's disability support pension and, in substitution therefor, decides that the applicant continues to be qualified for disability support pension.I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Weerasooriya, MemberSigned: ..........(sgd V Wong).......................................... AssociateDate/s of Hearing 25 November 2002 Date of Decision 21 January 2003Counsel for the Applicant In person Counsel for the Respondent Mr A Jones Solicitor for the Respondent Advocacy and Administrative Law Team, Centrelink

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.