Simpson and Secretary, Department of Family and Community Service S

[2003] AATA 1127

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1127

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1088

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALICE SIMPSON

Applicant

And

SECRETARY, DEPARTMENT

OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date11 November 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

...................(Sgd)....................

O Rinaudo
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – eligibility – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work

Social Security Act 1991 s 94

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

REASONS FOR DECISION

11 November 2003	Mr O Rinaudo, Member
Decision Under Review

1. Ms Simpson seeks review of a decision made by Centrelink on 26 February 2002 to cancel disability support pension. On 17 July 2002 an Authorised Review Officer affirmed this decision. The Authorised Review Officer determined that Ms Simpson rated 15 impairment points for her permanent medical conditions of osteoarthritis, hypertension and irritable bowel syndrome. As Ms Simpson did not rate 20 or more impairment points, as required by section 94 of the Social Security Act 1991, she was no longer qualified for payment of disability support pension, which she had been receiving since 1996.  The Authorised Review Officer also determined that Ms Simpson did not have a continuing inability to work.

2.      On 20 November 2002 the Social Security Appeals Tribunal affirmed the decision under review.  However, that Tribunal determined that Ms Simpson had a total rating of 10 impairment points under the Tables rather than 15 impairment points as determined by the Authorised Review Officer.

Issues

3.      The issues to be determined by the Tribunal are:

·     whether Ms Simpson has a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables, and, if so;

·     whether, as a result of this impairment, Ms Simpson has a continuing inability to work.

Legislation

4.      The legislation relevant to this application is contained in the Social Security Act 1991 (“the Act”). In particular, sections 94(1), (2) and (5) are most relevant. These sections state as follows:

“(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 support pension; or

(iii)is…