Said; Secretary, Department of Family and Community Services - [2002] AATA 951

DECISION AND REASONS FOR DECISION [2002] AATA 951

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/262

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

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 18 October 2002
Place Sydney

Decision The decision under review is affirmed.

[SGD] Rear Admiral A R Horton AO
Member

CATCHWORDS

SOCIAL SECURITY – cancellation of disability support pension – review of decision that the Respondent continues to qualify – whether Respondent had physical, intellectual or psychiatric impairment of 20 points or more - whether Respondent had continuing inability to work

Social Security Act 1991 - section 94, schedule 1B
Social Security (Administration) Act 1999 – section 80

McDonald v Director-General of Social Security (1984) 1 FCR 354
Freeman v Secretary, Department of Social Security (1988) 87 ALR 506

REASONS FOR DECISION

18 October 2002 Rear Admiral A R Horton AO, Member

This is an application by the Secretary, Department of Family and Community Services, for review of a decision of the Social Security Appeals Tribunal ("the SSAT") of 22 January 2002 which set aside a decision of an Authorised Review Officer ("ARO") of Centrelink dated 22 November 2001 to cancel payment of the Disability Support Pension ("DSP") to Elia Said ("the Respondent"). The latter decision had affirmed an earlier decision by an authorised delegate of the Applicant.
The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 19 February 2002. A hearing took place on 2 August 2002. Following adjournment for further medical evidence, the hearing was resumed on 6 September 2002. Mr G Lozynsky, advocate, appeared for the Applicant. Mr M Smith of Counsel appeared for the Respondent.
The Tribunal had before it the documents provided by the Applicant pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the T documents"). The Tribunal heard evidence from Mr Said, his wife Mrs Evelyn Said, Dr A Dinnen and Dr G George. The Tribunal also took into evidence the following documentation:

Exhibit A1Report by Dr P Kamenyitzky, Senior Medical Adviser, Health Services Australia, dated 21 June 2002
Exhibit A2Report by Dr G J George, Consultant Psychiatrist, dated 26 August 2002
Exhibit R1Report by Dr A Dinnen, Consultant Psychiatrist, dated 9 May 2002
Exhibit R2Report by Dr A Dinnen, Consultant Psychiatrist, dated 15 May 2002
Exhibit R3Letter from Dr A Michael, General Practitioner, dated 24 July 2002
Exhibit R4Report by Dr A Dinnen, Consultant Psychiatrist, dated 7 August 2002 under cover of a letter to Dr Dinnen by Mr W Gerogiannis, Solicitor, dated 7 August 2002
LEGISLATION

Section 94 of the Social Security Act1991 ("the Act") defines the qualification criteria for the disability support pension and states, relevantly:
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…

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 Said; Secretary, Department of Family and Community Services

Details

AGLC: Said; Secretary, Department of Family and Community Services [2002] AATA 951
Case: [2002] AATA 951
Decision Date: 18 October 2002

CaseChat Overview and Summary

Mr Said, a former recipient of the disability support pension, sought judicial review of a decision to cancel his pension, made by the Secretary, Department of Family and Community Services. The central dispute was whether Mr Said continued to meet the eligibility criteria for the disability support pension, specifically whether he had a physical, intellectual, or psychiatric impairment of 20 points or more and a continuing inability to work. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether the decision to cancel Mr Said's disability support pension was lawful and whether Mr Said's medical conditions met the criteria for the pension as outlined in the Social Security Act 1991 and the Social Security (Administration) Act 1999. The court needed to determine if the decision-maker correctly assessed Mr Said's medical evidence and whether the cancellation decision was justified. Relevant authorities such as McDonald v Director-General of Social Security and Freeman v Secretary, Department of Social Security provided guidance on the interpretation of the relevant legislation and the standard of review applicable to the decision.

The court examined the evidence presented by Mr Said and the Department, including medical reports, testimonies, and the decision-making process. The court found that Mr Said's medical conditions, including his lymphoma, ongoing nasal and eye issues, and their impact on his daily functioning, met the criteria for a 20-point impairment. Despite the remission of his lymphoma, the lingering effects of his medical conditions and their impact on his ability to work were considered. The court concluded that the decision to cancel Mr Said's disability support pension was not supported by the evidence, and thus, the decision was unlawful.

The court set aside the decision to cancel Mr Said's disability support pension and remitted the matter back to the Secretary for reconsideration, in light of the court's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The alternate view, as proffered by Counsel, was that a later operative date, or date of original decision, was the 19 September 2001, this being referred to in an internal document completed by the Applicant (T25 p130). To add to the confusion, a file note by the Applicant at T20 p121 which addresses the requirement to obtain an independent psychiatric assessment, states, "If we are to cancel this payment…." and the SSAT, probably through a typing error, refers to the 9 September 2001 as the date of cancellation. Counsel held to the view that the later date of 19 September 2001 was the relevant date, that being the decision that had been reviewed by the ARO and SSAT, but concluded that the matter may not be significant given the material to be presented. The Tribunal decided to reserve further comment and judgment.EVIDENCE BEFORE THE TRIBUNAL Mr Said was born in April 1962. He gave evidence that he arrived in Australia from Lebanon at the age of 13 and continued his schooling to the Higher School Certificate level. He subsequently undertook a hairdressing apprenticeship for four years, and worked as a ladies hairdresser in Chatswood for the ensuing nine years. He described himself as "a very good hairdresser" who "loved his job". He attained the position of manager of some of the salons of his employer. In 1986 he returned to Lebanon to marry. In the course of the next few years, when he was considering opening his own salon, he started "getting ill". He described the circumstances variously as having difficulty breathing, dizziness, headaches, a loss of balance and stomach turning. He gave evidence that he was forced to give up hairdressing after the onset of these symptoms, periodic attempts to return to work being unsuccessful. This seemingly occurred in 1988 - 1989, there being medical reports in the section 37 documents, following referral by his general practitioner, Dr A Michael, in relation to these conditions. Further medical examinations took place in Lebanon in 1990-1991, and in due course, Mr Said was diagnosed with malignant lymphoma of the right nasal sinus, and underwent chemotherapy treatment (T4 p42). On return to Australia, he underwent a course of radiotherapy for non-Hodgkin's lymphoma, a condition that was reported to be in full remission by Dr J Gibson, Consultant Haematologist, in May 1991 (T4 p50). Dr Gibson further reported in February 1996 (T8 p64) that the condition remained in full remission, and Mr Said confirmed in cross examination that this condition was periodically checked and that he was not on any medication. His response to the question "do you agree with Dr Gibson that you are in remission", he replied, " Well, he is the doctor, not me", but he went on to state that in his view, the lymphoma has contributed to his ongoing and current medical conditions. Mr Said stated that he suffered from a swollen and weeping eye and a blocked right nasal passage and sinus, as well as balance and headache problems prior to the diagnosis of lymphoma, conditions that continue to this day. He suggested that the blocked nasal passage became worse after the excision of a polyp (T4 refers) at the time of chemotherapy treatment, the present effect being a mucus build-up and discharge which affected his sleeping pattern at night, requiring him to rest during the day. In turn, the blocked nasal passage affected his right eye, which had very limited vision. He does not wear glasses as they make no difference, and his capacity to read is limited to a few minutes by eye irritation and an inability to focus. Television viewing is restricted to about 30 minutes and an inability to cope with fast movement, such as in sport.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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