Tranter; Secretary, Department of Employment and Workplace Relations and - [2007] AATA 2004

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2004
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1381

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And

JUSTINE TRANTER

Respondent

DECISION

Tribunal Ms Naida Isenberg, Senior Member
Date30 November 2007
PlaceNewcastle

Decision

The Tribunal varies the decision under review in that the Respondent attracts 20 points under the relevant impairment tables during the relevant period. The decision to grant the application for the disability support pension is otherwise affirmed.

....................[sgd].........................
Ms Naida Isenberg
Senior Member

CATCHWORDS
SOCIAL SECURITY – disability support pension – physical impairment – entitlement to disability support pension – whether the Respondent had an impairment rating of 20 points or more under the impairment tables – reasonableness of Respondent’s refusal to adopt recommended treatment - whether the Respondent had a continuing inability to work – decision under review varied and affirmed
Social Security Act 1991 – sections 94 and Schedule 1B
Social Security (Administration) Act 1999 – section 13 and Schedule 2
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007)
94 ALD 507
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
Re Rudder and Secretary, Department of Employment and Workplace Relations [2006]
AATA 249
Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD
222
Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358
Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA
864
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA
1076
Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517
Re Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472
Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73
ALD 568
REASONS FOR DECISION

30 November 2007 Ms Naida Isenberg, Senior Member

DECISION UNDER REVIEW
1. This is an application by the Secretary, Department of Employment and Workplace Relations (“the Applicant”) for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 1 September 2006. The SSAT decided to set aside a decision made by Centrelink on 25 March 2006, and affirmed by an Authorised Review Officer (“ARO”) on 11 July 2006, to reject the Respondent’s (“Ms Tranter”) claim for disability support pension (“DSP”). In substitution of that decision, the SSAT found that Ms Tranter satisfied sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (“the Act”) and had done so since the date of her claim.
BACKGROUND
2. Ms Tranter lodged her claim forms for DSP with Centrelink on 14 February 2006. However, pursuant to subsection 13(1) of the Social Security…

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 Tranter; Secretary, Department of Employment and Workplace R...

Details

AGLC: Tranter; Secretary, Department of Employment and Workplace Relations and [2007] AATA 2004
Case: [2007] AATA 2004
Decision Date: 30 November 2007

CaseChat Overview and Summary

In the matter of Tranter and the Secretary, Department of Employment and Workplace Relations, the dispute revolved around the entitlement of the respondent to a disability support pension under the Social Security Act 1991. The respondent contended that they had an impairment rating of at least 20 points according to the relevant impairment tables, and thus should qualify for the pension. The matter was reviewed by the Administrative Appeals Tribunal (AAT) under the Social Security (Administration) Act 1999.

The primary legal issues before the tribunal were whether the respondent had an impairment rating of 20 points or more, and if the respondent had a continuing inability to work. These questions required careful consideration of the statutory criteria and relevant case law, including Freeman v Secretary, Department of Social Security, and Re Stojanovic and Secretary, Department of Employment and Workplace Relations. The tribunal also needed to examine the reasonableness of the respondent’s refusal to adopt recommended treatment and its impact on the assessment of their ability to work.

After reviewing the evidence and applicable legal principles, the tribunal found that the respondent indeed had an impairment rating of 20 points or more during the relevant period. However, the tribunal also found that the respondent's refusal to adopt recommended treatment was unreasonable and impacted the assessment of their capacity to work. Despite this, the tribunal affirmed the decision to grant the disability support pension, noting that the respondent's overall condition and inability to work met the necessary criteria. The tribunal varied the decision under review to reflect the correct impairment rating.

The tribunal ordered that the decision to grant the disability support pension be affirmed, with the modification that the respondent attracts 20 points under the relevant impairment tables during the relevant period. This nuanced outcome ensured that the respondent's entitlement was accurately reflected while maintaining the overall decision in their favour.

Orders

Orders of the court

The Tribunal varies the decision under review in that the Respondent attracts 20 points under the relevant impairment tables during the relevant period. The decision to grant the application for the disability support pension is otherwise affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS