Xerri and Secretary, Department of Employment and Workplace Relations

[2006] AATA 493

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 493

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/152

GENERAL ADMINISTRTIVE  DIVISION		)
Re		EMANUEL XERRI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date7 June 2006

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Deputy President

CATCHWORDS

Social Security – disability support pension – impairment – whether qualifies for pension within 13 week period – whether impairments have a combined rating of 20 points or more under Impairment Tables – decision affirmed.

Social Security Act 1991 – ss41(1), 94(1), Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2

Re Goudge and Secretary, Department of Social Security (1989) 17 ALD 415

Re Batson and Secretary, Department of Family and Community Services [2004] AATA 1285

Re Secretary, Department of Family and Community Services and Pistone (2003) 37 AAR 334

Re Giddings and Secretary, Department of Family and Community Services [2003] AATA 893

REASONS FOR DECISION

7 June 2006 The Hon R J Groom (Deputy President)

1.      Mr Xerri is 62 years of age and resides in Malta where he was born.    He lived in Australia between 1961 and 1985.   He was employed as a road worker until July 2004.   Mr Xerri suffers from a number of medical conditions.  

2.      Mr Xerri applied for a Disability Support Pension (“DSP”) on 26 August 2004 but was unsuccessful.    He then failed in an appeal to the Social Security Appeals Tribunal (“SSAT”).   Mr Xerri now seeks a review of that decision.

3. There is in existence an international agreement between Australia and Malta under the Social Security (International Agreements) Act 1999. It is not in dispute that if the applicant satisfies the requirements of s94(1) of the Social Security Act 1991 (“the Act”) he would otherwise be entitled to receive a DSP.

4.      The hearing was conducted by telephone link to Malta.   Mr Karmenu Attard acted as interpreter.  The applicant attended the telephone hearing and was assisted by his wife Mrs Mary Jane Xerri and Mr Warren Dingli.   Mr Brian Sparkes, Centrelink advocate, represented the respondent. 

5. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”). Mr and Mrs Xerri and Dr M Tabart gave oral evidence.

6. The issue to be determined by the Tribunal is whether the applicant satisfies the requirements of s94(1) of the Act.

The Legislation

7. Section 94(1) of the Act relevantly provides as follows:

“A 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 20points or more under the Impairment Tables;       and

(c)       one of the following applies:

(i)   the person has a continuing inability to work;

...”

8. “Impairment Tables” means the Tables in Schedule 1B of the Act (see s23). The introduction to Schedule 1B provides, in part, as follows:

“4.        A rating is only…