WILSON And SECRETARY,DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS - [2006] AATA 638

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 638
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/1142
GENERAL ADMINISTRATIVE DIVISION

Re: RITA WILSON
Applicant

And: SECRETARY,
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent

DECISION
Tribunal:       Dr P.D. Fricker, Member
Date:             20 July 2006
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and in substitution finds that the applicant has a continuing inability to work within the meaning of s 94(1)(c) of the Social Security Act 1991 and has done so since 23 May 2005.
(sgd) Patricia D. Fricker
Member

SOCIAL SECURITY ‑ disability support pension ‑ depression, hearing impairment ‑ whether permanent at date of claim or within 13 weeks ‑ continuing inability to work.
Social Security Act 1991 s 94(1), Schedule 1B
Social Security (Administration) Act 1999 Schedule 2 s 4
Re Muir and Secretary, Department Of Employment and Workplace Relations [2005] AATA 902
REASONS FOR DECISION
20 July 2006  Dr P.D. Fricker, Member
1.      This is an application by Rita Wilson (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 23 November 2005. The SSAT affirmed a decision of an authorised review officer (ARO) of Centrelink dated 6 June 2005 not to pay the applicant disability support pension (DSP).
2.      At the hearing on 6 June 2006 Mrs Wilson represented herself. She was accompanied by her son-in-law, David Griffiths who addressed the Tribunal. Ms J Hume, a Centrelink advocate, appeared on behalf of the Secretary to the Department of Employment and Workplace Relations (the respondent).
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T29) together with documents tendered by the applicant (Exhibits A1‑A4) and the respondent (Exhibits R1‑R2).
BACKGROUND
4.      Mrs Wilson was born in December 1950. She completed her education to Year 9 at the age of 16. She migrated from the United Kingdom to Australia in 1962. She worked as a sewing machinist but has not been in the paid work force for the past 29 years. For many years she, in the company of her husband, cared for their intellectually disabled son. In May 2004 (T3, p23) her husband died; after which time she experienced increasing difficulty coping with her son's behaviour. He was placed in a residential care facility in April 2005.
5.      On 23 May 2005, Mrs Wilson lodged a claim for DSP. On the Medical Details form that she signed on 2 May 2005 (T4, pp25‑27) she listed her disabilities as 80 per cent deaf, suffering depression, anxiety, nervous breakdown and asthma. She indicated that she experienced difficulties all of the time interacting with others, attending work or other appointments and sleeping and often, with hearing, concentrating and remembering. She was unsure when she would be able to participate in part‑time, full‑time or voluntary work, education, rehabilitation or vocational training.
6.      Dr S S K Wong completed a Treating Doctor's Report on 19 May 2005 (T5) and listed depression as Condition 1. Dr…

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: WILSON And SECRETARY,DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS [2006] AATA 638
Case: [2006] AATA 638
Decision Date: 20 July 2006

CaseChat Overview and Summary

The case involved the applicant, Wilson, and the Secretary of the Department of Employment and Workplace Relations. The central dispute was whether Wilson had a continuing inability to work due to his disabilities, specifically depression and hearing impairment, at the time of his claim for a disability support pension or within the 13 weeks prior to the claim. This matter was brought before the Administrative Appeals Tribunal (AAT) for review.

The primary legal issue before the Tribunal was to determine if Wilson's disabilities, as alleged, resulted in a continuing inability to work under section 94(1)(c) of the Social Security Act 1991. The Tribunal had to assess the evidence presented regarding the onset and severity of Wilson's conditions, and whether they rendered him permanently incapable of working at the relevant times.

In its decision, the Tribunal closely examined the evidence provided by Wilson and the medical reports. It concluded that Wilson's depression and hearing impairment were indeed permanent and significantly impacted his capacity to work. The Tribunal found that Wilson's inability to work was continuous from 23 May 2005, thereby satisfying the criteria for a disability support pension. Consequently, the Tribunal set aside the original decision and determined that Wilson had a continuing inability to work due to his disabilities.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution finds that the applicant has a continuing inability to work within the meaning of s 94(1)(c) of the Social Security Act 1991 and has done so since 23 May 2005.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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