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

Case [2020] AATA 434

Wood and Secretary, Department of Social Services (Social services second review) [2020] AATA 434 (5 March 2020)

Division:GENERAL DIVISION

File Number(s):      2018/4803

Re:Christopher WOOD

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:The Hon. S Parry, Member

Date:5 March 2020

Place:Hobart

The Tribunal affirms the decision under review.

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

The Hon. S Parry, Member

SOCIAL SECURITY - disability support pension – qualification at date of claim – qualification period – whether the applicant had a physical or psychiatric impairment – impairment rating – continuing inability to work – decision affirmed

Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.

Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.

Fanning and Secretary, Department of Social Services [2014] AATA 447.

Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

Hamal and Secretary, Department of Social Services (1993) 30 ALD 517.

Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606.

Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642.

Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846.

Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500.

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444.

Secondary Materials

Social Security Guide

REASONS FOR DECISION

The Hon. S Parry, Member

5 March 2020

DECISION UNDER REVIEW

  1. The Applicant applied to Centrelink for Disability Support Pension (DSP) on 2 February 2018.  On 23 March Centrelink rejected the application.  The Applicant requested an internal review of the decision. On 21 May an Authorised Review officer (ARO) affirmed the decision.  The Applicant then sought review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1).  AAT 1 affirmed the ARO’s decision on 17 July 2018.  The Applicant now seeks review of the AAT 1 decision by the General Division of the Administrative Appeals Tribunal (AAT 2).

  2. The Tribunal had before it the documents lodged by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).  The Respondent also lodged a Statement of Facts, Issues and Contentions (SFIC) on 4 June 2019. Since lodging his application with the Tribunal, the Applicant has filed is an invoice/Medicare claim which shows that he underwent a “CT with surgical procedure” on 15 January 2019.

  3. The issues and facts as stated by the Respondent in its SFIC were not contested and the Applicant relied heavily upon matters that were outside the qualification period.  For clarity and convenience, the Tribunal has repeated paragraphs 3.1 to 6.18 of the Statement by the Secretary with minor amendments.

    ISSUES

  4. In determining whether the AAT1 decision…

Details
AGLC
Wood and Secretary, Department of Social Services (Social services second review) [2020] AATA 434
Case
[2020] AATA 434
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to reject a claim for a Disability Support Pension (DSP). The applicant, who was 50 years old at the time of his claim, sought DSP on the basis of a "broken back, severed tendons in right arm, neck issues/lower back, spinal fusion." His claim was initially rejected, and this decision was affirmed on review by an Authorised Review Officer. The Administrative Appeals Tribunal (AAT) was required to determine whether the previous decision was the correct or preferable one.

The legal issues before the Tribunal were whether the applicant met the cumulative qualification criteria for DSP as set out in section 94(1) of the *Social Security Act 1991* (the Act). Specifically, the Tribunal had to consider if the applicant had a physical, intellectual, or psychiatric impairment within the qualification period (section 94(1)(a)), if that impairment rated at least 20 points under the *Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011* (the Impairment Tables) (section 94(1)(b)), and if he had a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).

The Tribunal reasoned that the qualification criteria for DSP are cumulative, meaning all must be satisfied for a person to qualify. It noted that the assessment of an impairment rating and the assessment of a continuing inability to work are distinct but equally important. The Tribunal accepted the respondent's submission that the Job Capacity Assessment should be preferred due to the assessor's specialised knowledge and experience in identifying employment barriers. Ultimately, the Tribunal found that the applicant failed to satisfy sections 94(2)(a) and (b) of the Act, and therefore did not satisfy section 94(1)(c) during the qualification period. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

In determining whether the AAT1 decision is the correct or preferable decision, the Tribunal must apply the qualification criteria for DSP in s 94(1) of the Social Security Act 1991 (the Act). In particular, it must consider:(a)whether, as at the date of claim (2 February 2018) or within 13 weeks of that date, the Applicant had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act; (the qualification period); and(b)if so, whether the Applicant had an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for the purpose of s 94(1)(b) of the Act; and(c)if so, whether the Applicant had a continuing inability to work, as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.FACTS The Applicant was 50 years of age at the time of claim. On 2 February 2018, the Applicant lodged his claim for DSP (T28; T39, p 167). The Applicant listed his conditions as “broken back, severed tendons in right arm, neck issues/lower back, spinal fusion” (T28, p 127). On 22 March 2018, an Assessment Services Recommendation was completed. The assessor recommended that the Applicant was medically ineligible for DSP as his conditions were not fully diagnosed, treated and stabilised. The assessor noted that the previous Job Capacity Assessment report dated 10 April 2017 was still valid (T29). On 23 March 2018 the Applicant’s claim for DSP was rejected (T30). On 21 May 2018, following a request for a review, an ARO affirmed the rejection decision (T33). On 12 June 2018, the Applicant lodged an application for review with the AAT1. On 17 July 2018, the AAT1 affirmed the ARO decision (T2). On 17 August 2018, the Applicant lodged an application for further review (T1).LEGISLATION AND POLICYQualification for DSP The qualification criteria for DSP are set out in s 94 of the Act, which relevantly provides as follows:94. Qualification for disability support pension 1A person is qualified for disability support pension if:(a) the person has a physical, intellectual or psychiatric impairment; and(b)the person's impairment is of 20 points or more under the Impairment Tables; and(c)one of the following applies:(i) the person has a continuing inability to work; ... The qualification criteria for DSP are cumulative, and if any one of the criteria are not satisfied, the person will not qualify for DSP. The Social Security Guide at 3.6.3.05 importantly notes: The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance. Qualification period Section 42 of the Social Security (Administration) Act1999 (the Administration Act) provides that a person's ‘start day’ in relation to a social security payment is the day worked out in accordance with Schedule 2 to the Administration Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this respect the Respondent submitted that the Tribunal should prefer the Job Capacity Assessment of the Applicant’s work capacity, given such assessors have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity (Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642). The Tribunal accepts this submission.Conclusion The Tribunal finds that the Applicant fails to satisfy s 94(2)(a) and (b) of the Act. Therefore he does not satisfy s 94(1)(c) of the Act during qualification period. It follows that the Tribunal must affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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