Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2013] AATA 663

[2013] AATA 663

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/4071

Re

VMXC

APPLICANT

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

RESPONDENT

DECISION

Tribunal Deputy President RP Handley

Date 17 September 2013

Place Sydney
The decision under review is affirmed
................[sgd]........................................................
Deputy President RP Handley
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – whether she has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94

Social Security (Administration) Act 1999 sch 2, cl 4

SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION
Deputy President RP Handley
17 September 2013

The Applicant has applied for a review of a Social Security Appeals Tribunal (SSAT) decision affirming a decision made by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent) rejecting her claim for a Disability Support Pension (DSP).
BACKGROUND
The Applicant was born in Turkey, migrating to Australia with her family at the age of five. She is the mother of two adult children. She is currently receiving Newstart Allowance. The Applicant states that she has suffered from mental problems for many years having been abused by her father and, after an arranged marriage, by her husband. She was receiving a DSP prior to travelling to Turkey in 2008, but this was cancelled after she had been overseas for three months. The Applicant said she remained in Turkey for three years, returning to Australia on 19 January 2012. She phoned Centrelink on 20 January 2012 about lodging a new claim for DSP.
On 30 January 2012, the Applicant lodged a DSP claim form accompanied by a Medical Report of the same date completed by her General Practitioner (GP), Dr A Emin. Dr Emin identified two relevant conditions: reactive depression/panic attacks and lower back pain. On 9 February 2012, the Applicant was assessed by a Job Capacity Assessor who prepared a report dated 15 February 2012. The Assessor found that the Applicant’s “depression” was not fully diagnosed, treated and stabilised and that her “spinal disorder”, while fully diagnosed and treated, was not fully stabilised. On 20 February 2012, Centrelink rejected the Applicant’s claim for a DSP.
The Applicant requested a review of the rejection decision and supplied further medical reports:
·A report by Dr S Nagaratnam of a CT scan of her lumbar spine dated 13 February 2012 that concludes there is “degenerative change throughout the lumbar spine”.
·A report dated 10 April 2012 by Dr James van Gelder, Neurosurgeon, which states that the Applicant “has unusually advanced degenerative disc disease at multiple levels in her lumbar spine” and associated back pain that is “best managed using conservative approaches”.
·A report dated 30 April 2012 by a registered psychologist, Bestegul…

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 VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 663
Case: [2013] AATA 663
Decision Date: 17 September 2013

CaseChat Overview and Summary

The case of Re VMXC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs involved an application for a review of a decision by the Social Security Appeals Tribunal affirming the rejection of the Applicant's claim for a Disability Support Pension (DSP). The Applicant, who had previously received a DSP but had it cancelled while she was overseas in Turkey, sought to have her claim for a DSP re-instated. The dispute centred on whether the Applicant's impairments met the 20-point threshold under the Impairment Tables and whether she had a continuing inability to work.

The central legal issues before the court were whether the Applicant's impairments warranted a rating of 20 points or more under the Impairment Tables and whether she had a continuing inability to work, which are prerequisites for eligibility for a DSP. The court had to consider the medical evidence provided by the Applicant, including reports from her General Practitioner, a Neurosurgeon, a registered psychologist, and other medical assessments conducted by Centrelink.

The court reviewed the evidence and concluded that the Applicant's impairments did not meet the 20-point threshold required for a DSP. The assessments indicated that while the Applicant had conditions such as reactive depression and back pain, these were either not fully diagnosed, treated, and stabilised or did not result in an impairment rating sufficient to qualify for the pension. The court found that the Applicant's impairments were rated at 5 and 10 points for spinal and mental health conditions respectively, which did not meet the necessary criteria. Consequently, the decision under review was affirmed.

The final orders of the court were that the decision to reject the Applicant's claim for a Disability Support Pension was affirmed. The Applicant was not qualified for a DSP on 20 January 2012 and in the ensuing 13 weeks.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant has applied for a review of a Social Security Appeals Tribunal (SSAT) decision affirming a decision made by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent) rejecting her claim for a Disability Support Pension (DSP).BACKGROUND The Applicant was born in Turkey, migrating to Australia with her family at the age of five. She is the mother of two adult children. She is currently receiving Newstart Allowance. The Applicant states that she has suffered from mental problems for many years having been abused by her father and, after an arranged marriage, by her husband. She was receiving a DSP prior to travelling to Turkey in 2008, but this was cancelled after she had been overseas for three months. The Applicant said she remained in Turkey for three years, returning to Australia on 19 January 2012. She phoned Centrelink on 20 January 2012 about lodging a new claim for DSP. On 30 January 2012, the Applicant lodged a DSP claim form accompanied by a Medical Report of the same date completed by her General Practitioner (GP), Dr A Emin. Dr Emin identified two relevant conditions: reactive depression/panic attacks and lower back pain. On 9 February 2012, the Applicant was assessed by a Job Capacity Assessor who prepared a report dated 15 February 2012. The Assessor found that the Applicant’s “depression” was not fully diagnosed, treated and stabilised and that her “spinal disorder”, while fully diagnosed and treated, was not fully stabilised. On 20 February 2012, Centrelink rejected the Applicant’s claim for a DSP. The Applicant requested a review of the rejection decision and supplied further medical reports:·A report by Dr S Nagaratnam of a CT scan of her lumbar spine dated 13 February 2012 that concludes there is “degenerative change throughout the lumbar spine”. ·A report dated 10 April 2012 by Dr James van Gelder, Neurosurgeon, which states that the Applicant “has unusually advanced degenerative disc disease at multiple levels in her lumbar spine” and associated back pain that is “best managed using conservative approaches”. ·A report dated 30 April 2012 by a registered psychologist, Bestegul Tungandame, which states that having initially been referred by Dr Emin for treatment in 2006, she was re-referred for counselling and psychological treatment for depression on 21 February 2012. This treatment included providing “Client Centred Supportive counselling with some component of CBT and Solution Focus Therapy”. The psychologist said, in her opinion, the Applicant would not benefit from an employment support program and was not fit for work.·A Medical Certificate from Dr Emin dated 7 May 2012 which states that the Applicant suffers from “acute reactive depression and anxiety attacks” which are permanent and likely to deteriorate in two years. On 9 May 2012, a further Job Capacity Assessment was undertaken and a report of the same date prepared. The Assessor took into consideration a report of a Centrelink Spinal Function Assessment performed on the same date. The Assessor found that the Applicant’s spinal disorder was fully diagnosed, treated and stabilised and recommended an impairment rating of 5 under Table 4 – Spinal Function. The Assessor also found that the Applicant’s psychiatric condition was fully diagnosed, treated and stabilised and recommended an impairment rating of 10 under Table 5 – Mental Health Function.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant was not therefore qualified for a DSP on 20 January 2012 and in the ensuing 13 weeks, and the decision under review must be affirmed.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4071
Re	VMXC
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

Tribunal	Deputy President RP Handley
Date	17 September 2013
Place	Sydney