Tony BEE and Secretary, Department of Social Services - [2015] AATA 303

[2015] AATA 303

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/3601

Re

Tony BEE

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal Dr Ion Alexander, Member

Date 7 May 2015

Place Sydney
The reviewable decision is affirmed.

........................[sgd]...........................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
7 May 2015
BACKGROUND

On 18 March 2013 and 18 December 2013 Mr Bee lodged claims for Disability Support Pension (DSP) on the basis that his medical conditions were having an impact on his ability to function.
Mr Bee did not describe his medical conditions in the claim forms and relied on two Centrelink medical reports dated 14 March 2013 and 17 December 2013 provided by his GP, Dr Saeed. For present purposes the relevant conditions listed by Dr Saeed are a spinal condition (cervical and lumbosacral), a lower limb condition (left ankle), an upper limb condition (left shoulder) and a mental health condition (depression).
Mr Bee’s claims were rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular, s 94(1)(b) of the Act in that his impairment rating under the Impairment Tables was not 20 points or more.
In this proceeding Mr Bee seeks review of the SSAT’s decision on 24 June 2014.
At the hearing Mr Bee was self-represented and was able to give oral evidence. Mr Bee was offered the services of an interpreter in the Turkish language but he declined.
I note that Mr Bee lodged a further claim for DSP on 10 December 2014 which was rejected by Centrelink on 22 December 2014.
ISSUES
In order to qualify for DSP Mr Bee had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between either 18 March 2013 and 17 June 2013 (claim period 1) or between 18 December 2013 and 19 March 2014 (claim period 2).
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and
·fully treated (paragraph 6(4)(b)),…

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.

Continue reading Tony BEE and Secretary, Department of Social Services

Details

AGLC: Tony BEE and Secretary, Department of Social Services [2015] AATA 303
Case: [2015] AATA 303
Decision Date: 7 May 2015

CaseChat Overview and Summary

In the case of Tony BEE and the Secretary, Department of Social Services, the dispute involved the eligibility of Mr. Bee for a Disability Support Pension (DSP) under the Social Security Act. Mr. Bee contested the Secretary's decision to deny his claim for a DSP, arguing that his conditions were fully diagnosed, treated, and stabilised and that his impairment warranted a rating of 20 points or more under the Impairment Tables. The matter was heard and determined by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr. Bee's conditions were indeed fully diagnosed, treated, and stabilised, and if his impairment warranted a rating of 20 points or more under the Impairment Tables, thereby qualifying him for a DSP. Additionally, the Tribunal needed to determine if Mr. Bee satisfied the requirements of section 94(1)(b) and (2)(aa) of the Act, particularly whether he had a severe impairment under one Impairment Table and actively participated in a program of support.

The Tribunal found that during the claim periods, Mr. Bee experienced a mild functional impact on his activities involving mental health function, warranting a rating of five points under Table 5. Consequently, the Tribunal concluded that Mr. Bee did not achieve a rating of 20 points or more under the Impairment Tables, thus he did not meet the criteria under section 94(1)(b) of the Act. The Tribunal further noted that even if Mr. Bee's rating had been 20 points or more, he would not have qualified for DSP as he could not satisfy the requirements of section 94(2)(aa). Specifically, Mr. Bee did not have a severe impairment under one Impairment Table, and he had not actively participated in a program of support. The Tribunal affirmed the Secretary's decision.

As a result, the Tribunal upheld the Secretary's decision denying Mr. Bee's application for a DSP.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

After consideration of the evidence and the relevant descriptors in Table 5 I am satisfied that during the claim periods there was a mild functional impact on Mr Bee’s activities involving mental health function and that a rating of five points can be applied.DECISION For the reasons set out above I am satisfied that during the two claim periods Mr Bee’s rating under the Impairment Tables was not 20 points or greater and therefore he did not satisfy section 94(1)(b) of the Act and was not qualified for DSP. Although I do not have to decide whether during the claim periods Mr Bee had a continuing inability to work, I note that the evidence before the Tribunal is such that even if Mr Bee did have a rating of 20 points or more under the Impairment Tables he would not have qualified for DSP because he could not satisfy the requirements of s 94(2)(aa). He did not have a “severe impairment” under one Impairment Table and he had not “actively participated” in a program of support. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3601
Re	Tony BEE
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Dr Ion Alexander, Member
Date	7 May 2015
Place	Sydney