Roberts and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1270

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1270

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200600539

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FRANK ROBERTS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member
Dr M Denovan, Member

Date1 May 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – adenocarcinoma of prostrate and osteoarthritis of knees – physical impairment and impairment rating of 20 points – whether “continuing inability to work” during relevant period – impairments not sufficient to prevent applicant working within 2 years subsequent to relevant period – Tribunal satisfied that disability support pension not established – decision under review affirmed.

Social Security Act 1991 (Cth) s 94

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Muir and Secretary Department of Employment and Workplace Relations (2005) AATA 902

REASONS FOR DECISION

1 May 2007     Dr K S Levy, Senior Member RFD
  Dr M Denovan, Member            

Background

1.      The applicant, Mr Frank Roberts made an application to the respondent, Centrelink, for Disability Support Pension on 31 March 2006.  Centrelink decided on 8 May 2006 that Mr Roberts did not qualify for Disability Support Pension. 

2.      On 9 May 2006 Mr Roberts requested a review of that decision, however, the decision was affirmed by the original decision-maker in the first instance, and subsequently by an Authorised Review Officer (ARO) on 22 May 2006.

3.      Mr Roberts then appealed the decision to the Social Security Appeals Tribunal (the SSAT).  The SSAT also affirmed the original decision of the respondent on 26 July 2006.  On 3 August 2006 the applicant appealed to this Tribunal.

Issue

4. The issue for this Tribunal to determine is whether Mr Roberts had a “continuing inability to work” in accordance with s 94(1)(c)(i) of the Social Security Act 1991 (“the Act”).  This question must be assessed narrowly, that is, only for the relevant period of 31 March 2006 to 30 June 2006. 

Legislation

5.The relevant legislation, current at the time period of the decision under review, is as follows:[1]

[1] See Social Security Act 1991 (Act No. 46 of 1991 as amended).

“Qualification for disability support pension

94(1)  A person is qualified for disability support pension if:

(a)the person has a physical, intellectual or psychiatric impairment; and

(b)the person's impairment is of 20 points or more under the Impairment Tables; and

(c)one of the following applies:

(i)the person has a continuing inability to work;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)the person has turned 16; and

(e)the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability…