SAMIR EKERMAWI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 280
•14 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 280
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5623
GENERAL ADMINISTRATIVE DIVISION ) Re SAMIR EKERMAWI Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen Date14 April 2009
PlaceSydney
Decision The decision of the Social Security Appeals Tribunal made the 24th October 2007 is set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant is entitled to the payment of Disability Support Pension as and from the 15th day of December 2006 ...................[sgd]........................
M D Allen
Senior Member
CATCHWORDS
SOCIAL SECURITY: Application for Disability Support Pension – Claim conceded by Respondent but Applicant seeking to back date to date of original cancellation – matter before the Tribunal decision of the Social Security Appeals Tribunal dated 24 October 2007 and no power to consider earlier claims.
LEGISLATION
Social Security Act 1991: s94
Administrative Appeals Tribunal Act 1975: ss 43(2A)CASE LAW
Ekermawi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 691
REASONS FOR DECISION
14 April 2009 Senior Member M D Allen 1. On 14 April 2009 I stated verbally the orders which the Tribunal intended to make in this matter. Pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, the Applicant and Respondent have requested written reasons for my decision. These are the reason and a copy thereof will be provided to the Applicant and to the Respondent.
2. On 20 November 2007 the Applicant sought review of a decision by the Social Security Appeals Tribunal (“SSAT”) made the 24th day of October 2007. That decision affirmed a prior determination by an Authorised Review Officer (“ARO”) in the Respondents department rejecting that Applicants claim for a Disability Support Pension (“DSP”).
3. The Applicant had originally been granted a DSP on 20 March 1997. In 2004 that pension was suspended due to the Applicant’s involvement in a private company.
4. The Applicant applied for the reinstatement of his DSP on 2 March 2005 but that claim was rejected. Subsequently he appealed that decision to reject his claim to the SSAT who affirmed the decision to reject the claim.
5. The Applicant did not seek to have that decision of the SSAT reviewed by the Administrative Appeals Tribunal (“AAT”).
6. On 6 November 2006 the Applicant provided Centrelink with documents in relation to his involvement in the private company and a treating doctor’s report.
7. The Applicant was subsequently assessed by a Job Capacity Assessor who determined that whereas the Applicant has an impairment rating of 20 points under the Impairment Tables in Schedule 1B to the Social Security Act 1991 (“SS Act”) he did have the capacity to work for greater than 15 hours per week, and thus did not have a continuing inability to work.
8. Sub sections 94(1) and (2) SS Act read inter alia:
“ (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 person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work within the next two years.”
Whereas “work” is defined in Ss 94(5) SS Act as:
“ The word “work” means work:
(a) that is for at least 15 hour per week at award wages or above:
(b) that it exists in Australia, even if not within the person’s locally accessible labour market.”
9. The decision to reject the Applicant’s claim for a DSP was affirmed by the SSAT on 24 October 2007 and it is this decision that was appealed by the Applicant to the AAT.
10. The question of what decision or decisions were before the AAT was raised as a preliminary issue in this matter and in Ekermawi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 691, Deputy President Walker determined that the decision before the Tribunal was the decision of the SSAT made the 24th day of October 2007.
11. In his decision, the learned Deputy President said:
“ 47. It would appear, however, that the SSAT’s 7 September 2006 decision merged the original and ARO decisions. By affirming the rejection of the 2005 claim, it had effectively disposed of all claims the Applicant could raise in relation to 2005 claims. Thus the SSAT’s 2006 decision effectively became the operative one in relation to the 2005 claim. The Respondent takes the position that the Applicant might still apply to this Tribunal in relation to the SSAT decisions of 7 September 2006 and 24 April 2007 but that applications for extension of time would be needed. It is not necessary to comment on the Applicant’s rights in that regard, but I accept the Respondent’s submission that those prior SSAT decisions cannot form part of the current proceedings.
48. In Re Nisha and Secretary, Department of Family and Community Services [2003] 74 ALD 172, the Tribunal had to consider the situation where decisions by officers and ARO were made in relation to the same subject matter as had previously been determined by both the SSAT and this Tribunal. On a second SSAT application it was decided that the purported decisions by the original decision-maker and ARO after this Tribunal’s decision were not reviewable by the SSAT as they were not made here under Ss126 or 135 of the Act. The Tribunal accepted the SSAT’s conclusions.
49. After the 7 September 2006 SSAT decision, the Applicant was no longer a DSP recipient or claimant, as his claim had been rejected. The only basis on which an officer or ARO could make a determination about the Applicant’s DSP eligibility was on the basis of a fresh claim.
50. Although no claim form has been found, the Respondent was operating on the basis that a claim had been made by the Applicant on or about 6 November 2006 when he supplied the necessary information. The point is in any event moot because at all stages the Applicant has been found not to be qualified for DSP. Even if the formal requirements for a claim were not complied with in November 2006, it does not necessarily follow that the later SSAT reviews can thereby be categorised as relating to the 2005 claim.
51. The decision under review is the SSAT decision of 24 October 2007 and this Tribunal has the power to review it. I conclude, however, that in doing so this Tribunal has no power to review the decision to reject the Applicant’s DSP claim made in 2005. The review is thus confined to considering whether the Applicant was qualified for DSP in 2006, not whether the March 2005 application was correctly rejected.”
12. Subsequently, on 8 October 2008 the Applicant lodged an application to extend time in which to seek review of the SSAT decision made the 7th September 2006 affirming the prior determination to reject his 2005 claim for DSP. That application was refused by me on 27 October 2008.
13. In the current proceedings I was informed by the representative for the Respondent that it was prepared to grant the Applicant’s December 2006 claim for DSP.
14. As I understand the Applicant’s submissions, he did not accept that the matter before the Tribunal was the review of the SSAT decision of 24 October 2007 but that he wished to raise the question of back payment of DSP to 2004 when it was originally suspended.
15. Notwithstanding the Applicant’s submissions, I was satisfied as per Deputy President Walker’s decision of 7 August 2008, which decision had not been appealed to the Federal Court, that the only matter before the Tribunal as at 14 April 2009 was the review of the decision of the SSAT of 24 October 2007, which decision affirmed the prior determination to reject the Applicant’s claim for DSP made the 6th November 2006.
16. Any questions of back payment of DSP to the original date of cancellation in 2004 did not arise in the current Application for review consequently, given the attitude of the Respondent, I made the decision to set aside the decision under review and substitute my decision that the Applicant is entitled to the payment of DSP as and from 15 December 2006.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: .......................[sgd]........................................................
M. Corcoran, AssociateDate/s of Hearing 14 April 2009
Date of Decision 14 April 2009
Solicitor for the Applicant Appeared on own behalf
Solicitor for the Respondent G. Heggen, Centrelink Legal Services
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