Swan and Secretary, Department of Social Services (Social services second review)

[2018] AATA 4768

Swan and Secretary, Department of Social Services (Social services second review) [2018] AATA 4768 (28 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1181

Re:Bruce Swan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:A G Melick AO SC, Deputy President

Date:28 November 2018

Date of written reasons:        11 January 2019

Place:Hobart

For the reasons given orally at the conclusion of the hearing, the decision under review is affirmed.

................................[sgd]....................................

A G Melick AO SC, Deputy President

CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – whether physical, intellectual or psychiatric impairments – whether fully diagnosed, treated and stabilised – whether impairments attract 20 points or more – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 43(2A)

Social Security Act 1991 (Cth), s 94

WRITTEN REASONS FOR DECISION

A G Melick AO SC, Deputy President

11 January 2019

1. A hearing was held on 28 November 2018 and both the Applicant and Respondent attended in person. A decision, and the reasons for it, was given orally at the conclusion of that hearing. The Applicant made a request for written reasons pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 and those reasons are set out below.

2. This review concerns an application to set aside a decision denying the Applicant disability support pension (DSP), the qualification period for which was from 10 July 2017 to 1 October 2017.

3. I note that the evidence before the delegate of the Department of Human Services in relation to the Applicant’s eligibility for DSP during the qualification period was limited. The delegate found that they could not be satisfied as to the conditions necessary pursuant to s 94 of the Social Security Act 1991, including an at least 20 point impairment rating and an inability to work within a two year period for more than 15 hours per week.

4. The deficiencies were discussed with the Applicant during the hearing and he was unable to provide any additional materials relevant to the qualifying period.

5. The Applicant impressed me as being honest and as currently experiencing significant medical effects in relation to his various conditions. These effects may have led me, if assessing the Applicant’s current impairment, to find that he was eligible for DSP as of today. However, there is insufficient evidence before the Tribunal in relation to the Applicant’s condition during the relevant 13 weeks qualification period to make a finding of eligibility during that time. I note that the Respondent’s representative behaved fairly and appropriately, and undertook to assist the Applicant in relation to a new claim for DSP.

6. Accordingly, I affirm the decision under review, and reject the Applicant’s claim for DSP.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

..............................[sgd]...................................

Associate

Dated: 11 January 2019

Date(s) of hearing:	28 November 2018
Applicant:	In person
Advocate for the Respondent:	Mr Nam Nyugen
Solicitors for the Respondent:	Sparke Helmore