Scognmillo, G. v Secretary to the Department of Social Security

[1985] FCA 328

Re: GENARRO SCOGNAMILLO
And: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY
No. G.79 of 1985
Social Security

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

SOCIAL SECURITY - Invalid pension - Application for pension by person to whom pension previously granted and who voluntarily surrendered pension in order to obtain employment - Relevance of previous pension - Whether decision-maker bound to grant application in the absence of proof that the previous pension was granted erroneously or that there has been a change in the applicant's physical condition rendering him or her no longer permanently incapacitated.

Social Security Act 1947 ss. 14, 23, 24, 135TJ

McDonald v Director General of Social Security (1984) 1 F.C.R. 354 referred to.

HEARING

SYDNEY
#DATE 18:7:1985

ORDER

1. The appeal be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This appeal from a decision of the Administrative Appeals Tribunal (Mr J A Kiosoglous, Senior Member) raises the question of the proper approach to be taken by the Department of Social Security and, upon review, by the Tribunal to an application for an invalid pension by a person who has voluntarily cancelled an invalid pension, previously granted to him. In order to discuss the submissions put in relation to that question it is necessary only to outline the facts found by the Tribunal.

Genarro Scognamillo, the applicant, who is now aged 49 years, came to Australia in 1954. He worked as a labourer and as a boilermaker for various employers until 6 December 1978. On 7 March 1979 he sought an invalid pension. This application was successful, the pension being granted as from 15 March 1979. The decision to grant the pension was based upon two medical reports. The first report, which was furnished by a Commonwealth medical officer, contained an opinion that Mr Scognamillo was permanently incapacitated for work to the extent of 85% because of multiple discopathy of the lumbo-sacral spine and that a review was not necessary. The second report, from a consultant orthopaedic surgeon, stated that Mr Scognamillo was unlikely ever to be fit to return to his work as a boilermaker.

The applicant continued to receive pension payments until June 1982. At that time he received from a friend an offer of a job - - apparently light work on a night shift - - which he desired to accept. Mr Scognamillo approached the Department, arranged voluntarily to cancel the pension and commenced work. However, in October 1982, he left the job - - there is some ambiguity in the evidence as to the circumstances but for present purposes the reason does not matter - - and again became unemployed. In January 1983 Mr Scognamillo applied for a fresh invalid pension. That application was refused. The Social Security Appeals Tribunal upheld the refusal. The applicant then applied to the Administrative Appeals Tribunal for review of the decision to refuse. The Tribunal received evidence from several medical practitioners and, in the result, concluded that, although the applicant was not fit for work involving heavy lifting, he was fit for a wide range of work and was not permanently incapacitated for work within the meaning of s. 23 of the Social Security Act 1947. That section provides that "a person shall be deemed to be permanently incapacitated for work if the degree of his permanent incapacity for work is not less than 85%". By virtue of s. 24 of the Act a person must be permanently incapacitated for work within that definition in order to be qualified to receive an invalid pension.

The applicant, in his appeal to this Court, does not suggest that there was no material before the Tribunal upon which it could reach its conclusion on the issue of permanent incapacity. Nor could that submission properly be put; there was medical evidence each way upon that issue. The applicant's sole point is that the Tribunal erred in treating the application as if it were the first application which Mr Scognamillo had ever made for an invalid pension. It is not meant by this that the Tribunal had rejected evidence of, or failed to take into account the fact of, the grant of the previous pension in 1979. It is conceded that the Tribunal received evidence both of the fact of the grant and of the content of the medical opinions accepted at that time by the Department. But counsel for the applicant contends that it was not enough for the Tribunal merely to receive this material as part of the history of the case and as some evidence of Mr Scognamillo's physical condition in 1979. The Tribunal, he submits, should have approached the matter on the basis that the fact of that grant meant that the Department had the onus, at the hearing before the Tribunal, to demonstrate either that that assessment was erroneous when made or alternatively that there had been an actual change in Mr Scognamillo's condition between 1979 and the date of the Tribunal hearing so that where there had once been a condition of permanent incapacity there was no longer. Counsel suggests that, in a case where an invalid pensioner has voluntarily cancelled his pension, any application for a new pension should be assessed by reference to the same principles as a review under s. 14 of the Act of a decision to grant a pension.

It seems to me that the argument put on behalf of the applicant is erroneous. As I have already said, a qualification for a person to be entitled to an invalid pension is that he or she be permanently incapacitated for work. The question for the decision-maker, in relation to the matter of incapacity, is whether the applicant may properly be described as permanently incapacitated for work at the time of the decision whether or not to grant the pension. The applicant's work and medical history will generally be relevant to the determination of that question. In particular, in a case in which the applicant has previously been assessed as being permanently incapacitated that fact, and the medical reports upon which the assessment was based, will generally be relevant to the present assessment. The weight to be given to those matters must depend upon the circumstances of the case. For example, upon one extreme, the previous assessment may have been made very recently, upon the basis of a strong recommendation made by highly qualified specialists who made detailed investigations of the condition of the applicant before writing their reports. On the other extreme, the assessment may have been made many years ago and it may be clear that there have been significant supervening events which render that assessment of doubtful value. But these are matters merely of weight. Not only is there nothing in the Act to suggest that the determination of a second application must depend upon demonstration of some error in, or relevant change since, that assessment; to require the decision-maker to first make such a finding is to subvert the scheme of the Act. It would be to require the decision-maker to determine the matter by reference to an issue other than that presented by the relevant provision in the Act, namely s. 24.

At the heart of the applicant's argument is the matter of onus of proof. It is, of course, at least implicit in any decision that a particular applicant, who has previously been assessed as permanently incapacitated, is not permanently incapacitated either that the previous assessment was wrong or that there has been an improvement in the applicant's condition. But the applicant submits that there must be an express finding of one or other of these situations and that, if the Department does not establish one of these particular propositions, the pension application must be granted. That argument seems to me inconsistent with what was said about the applicability of the concept of onus of proof in matters of administrative review in McDonald v Director General of Social Security (1984) 1 F.C.R. 354, especially at pp.357 and 369. It may be, as counsel submits, that the position confronting the Tribunal upon a second application is much the same as that arising upon a review of a decision to cancel an existing pension. In each case the relevant question will be whether the person is at that time permanently incapacitated within the meaning of s.23. If, upon the material then before the Tribunal - - including the material which led to the original decision to grant a pension - - the proper conclusion is that the person is permanently incapacitated, then - - other qualifications being present - - he or she will be entitled to receive, or retain as the case may be, the pension. If that conclusion is not reached the pension should be refused or terminated. As there necessarily will be some material, if only the original assessment and supporting opinions, before the Tribunal it is difficult to see that in either case the situation could arise that, there being a total absence of evidence, the moving party must fail.

Counsel for the applicant suggests that a conclusion adverse to his submission would be undesirable, and would run counter to the humanitarian objectives of the Act, in that it would deter people in the position of his client from attempting to rehabilitate themselves by giving up the pension and attempting a return to the workforce. Theoretically this is not so. The continuation of a pension may be reviewed at any time and, if the position is reached that the pensioner is no longer permanently incapacitated, it would appear that the pension may be cancelled under s. 135TJ of the Act: of McDonald at p. 358 noting that s. 135TJ now replaces the old s. 46 referred to by Woodward J. . Nonetheless, I admit to some sympathy with the submission. In practical terms, I suspect, pension payments are more likely to be maintained without question if the pensioner continues to draw it and refrains from causing the re-opening of his or her case by cancelling, and then re-applying for, the pension. However, that consideration cannot affect the application to the case of the clear provisions of the Act.

In my opinion it is not shown that the Tribunal erred in law in its decision. The appeal must be dismissed. The respondent does not seek costs in the event of the appeal being dismissed. Consequently, there will be no such order.