Sisalem and Secretary, Department of Social Services (Social services second review) - [2016] AATA 170

Sisalem and Secretary, Department of Social Services (Social services second review) [2016] AATA 170 (22 March 2016)

Division

GENERAL DIVISION

File Number(s)

2015/4791

Re

Aladdin Sisalem

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Dr Damien Cremean, Senior Member

Date 22 March 2016

Place Melbourne
The decision under review is affirmed

.....................................................................
Dr Damien Cremean
SOCIAL SECURITY –Disability support pension—suspension--cancellation-- absence from Australia—eligible medical treatment—whether requirements for DSP met--Impairment Tables—indefinite portability—decisions affirmed.
Legislation
Social Security Act 1991(Cth), sections 29(1), 94(1), 94(3B),1217,1218AAA (1)(b).
Secondary Materials
Social Security (Tables for the Assessment of work-related Impairment for Disability support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Dr Damien Cremean
22 March 2016

The Applicant seeks review of the decision of the Social Services & Child Support Division of this Tribunal given on 1 September 2015 which affirmed decisions of the Department of Human Services as follows:
(a)the decision notified on 10 July 2015 to cancel his Disability Support Pension (‘DSP’) payable under the Social Security Act 1991(Cth).
(b)the decision notified on 11 July 2015 to suspend his DSP from 11 July 2015.
The issues for determination are whether:
(a)the maximum portability period for his DSP could be extended;
(b)he remained qualified for DSP as at the date of cancellation; and
(c)if he remained qualified for DSP at that date, his DSP payment was indefinitely portable.
At the hearing the Applicant appeared in person but called no witnesses. Previously he had lodged documentary materials and detailed submissions with the Tribunal.
In addition the Applicant addressed the Tribunal at considerable length—sometimes confusingly and sometimes inaudibly---on issues which he saw as important.
Formerly Victorian Legal Aid was acting for the Applicant.
The Respondent was represented by Ms Zhou.
In cross examination, questions asked of the Applicant by Ms Zhou did not show him in a favourable light.
For example, in his submissions the Applicant says that on his flight to Thailand for treatment at a clinic (which led to the cancellation of his DSP) I did not travel overseas alone. The Applicant was asked by Ms Zhou whether he was accompanied by anyone when he went on the flight. His answer was that he was accompanied–by the other passengers in the plane, or with people on the aircraft. He repeated his answer when asked again.
He said he could not remember the name of the person who told him about the clinic in Thailand but he did know that this person was a student at Swinburne University.
He said he found out about the clinic through a translation agency, but he did not offer any further detail.
The evidence given at the previous hearing however indicates that he came across the clinic on his way home from China while staying in Bangkok for a week.
At that hearing the Applicant apparently said a friend had earlier taken him to Indonesia for a holiday and rest and suggested he try treatment there for his back condition.
This was not mentioned by him…

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.

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Details

AGLC: Sisalem and Secretary, Department of Social Services (Social services second review) [2016] AATA 170
Case: [2016] AATA 170
Decision Date: 22 March 2016

CaseChat Overview and Summary

Aladdin Sisalem, the Applicant, sought a review of decisions by the Secretary, Department of Social Services, to suspend and subsequently cancel his Disability Support Pension (DSP). These decisions were affirmed by the Social Services & Child Support Division of the Administrative Appeals Tribunal on 1 September 2015. The Applicant's case was heard by Dr Damien Cremean, Senior Member of the Tribunal. The issues in the case were whether the maximum portability period for his DSP could be extended, whether he remained qualified for DSP as at the date of cancellation, and if his DSP payment was indefinitely portable.

Dr Cremean found that the Applicant had exceeded the portability period allowed under the Social Security Act 1991 (Cth). He had left Australia on 11 July 2015 and returned on 8 September 2015. The Applicant argued that his absence from Australia was for the purpose of seeking eligible medical treatment. However, Dr Cremean rejected this argument, finding that the treatment available in Thailand was not unique and could be obtained in Australia. Furthermore, Dr Cremean was not satisfied with the Applicant's evidence, finding him secretive and guarded about his activities and travels. Consequently, he was not satisfied that the Applicant had given the full picture of himself or his activities and travels. As a result, the first issue was decided against the Applicant.

Regarding the second issue, Dr Cremean found that the Applicant did not qualify for DSP as at the date of cancellation. Although the Applicant satisfied the criteria of having a physical, intellectual or psychiatric impairment, he did not satisfy the criteria of having an impairment of 20 points under the Impairment Tables. The Applicant's impairment rating was assessed at 10 points, and Dr Cremean was not satisfied that the Applicant had a severe functional impact as required by the Act. Moreover, the Applicant did not satisfy the criteria of having a continuing inability to work under section 94(1)(c)(i) of the Act. Consequently, the second issue was also decided against the Applicant.

Finally, as the Applicant did not qualify for a severe impairment under section 94(3B) for the purposes of section 1218AAA (1)(b) of the Act, he was not eligible for indefinite portability. The third issue was decided against the Applicant.

The decisions under review were affirmed by Dr Cremean, and the Applicant's appeal was dismissed.

Orders