Recent decisions of interest (Nov 2017 – Jan 2018)

admin SOCIAL SECURITY RIGHTS REVIEW

Here are three recent social security decisions of interest:

Pignat and Secretary, Department of Social Services (Social services second review) [2017] AATA 2745 (20 November 2017)

This case concerned an appeal against the decision to cancel an existing Disability Support Pension entitlement. There were two interesting aspects of this case:

  • a consideration of the expression “results from” and how an application’s impairment should be treated when it does not exclusively result from a permanent medical condition, and
  • how a decision-maker should approach cancellation or suspension cases.

In this case, Mr Pignat’s entitlement to DSP was cancelled following a re-assessment of his medical conditions against the more restrictive impairment tables introduced in 2012. He appealed this decision.

Mr Pignat suffered from fatigue which was attributed to a number of medical conditions. Only some of these contributing medical conditions were assessed as being permanent, as defined in the Social Security Act. The Tribunal asked: “What happens if the applicant’s fatigue is multi-factorial, and a permanent condition is one (albeit not a significant) factor?”

The Tribunal looked to the definition of impairment in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Section 3 defines impairment as: “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”

The Tribunal determined that:

  • a permanent medical condition need not be the only contributor to an impairment before that impairment can be assessed
  • however, the expression “results from” requires that the permanent medical condition must “make an appreciable or real contribution to the impairment”, and
  • “It would strain the common sense meaning of the words ‘results from’ if… even a de minimus contribution would establish the causal connection anticipated in the legislative scheme.”

The Tribunal also restated the operation of s80 of the Social Security (Administration) Act 1991 which applies to decisions to cancel or suspend an existing entitlement. In these cases, the decision maker “must be satisfied the applicant does not qualify….. whereas in fresh applications the decision-maker must be satisfied the applicant does qualify”. In other words, the decision maker “must be satisfied that the circumstances are such that the [entitlement] ought to be cancelled, as opposed to being satisfied the applicant meets the criteria.”

 

Kettlewell and Secretary, Department of Social Services (Social services second review) [2018] AATA 8 (11 January 2018)

This case discusses the criteria for being treated as a member of a couple. In this case, the applicant was assessed as being a member of a couple for the purposes of calculating his rate of aged pension. He appealed this decision. The Tribunal heard evidence that although he remained living with his wife, they had separated in 2010. In examining the various aspects of the relationship, the Tribunal found that the applicant was a member of a couple despite the separation.

The Department gave evidence, which was conceded by the applicant, that the household arrangements between the spouses was adjusted in an attempt to satisfy the legislative expectations of a separated couple living together (such as cooking and eating meals separately).

 

Obradovic; Secretary, Department of Social Services and (Social services second review) [2018] AATA 41 (17 January 2018)

This case is an appeal by the Department against a decision of AAT Tier 1 to waive a debt of $190,885.33 in recorded overpayments. In this case, the respondent did not disclose ownership of a property to the Department and therefore this property was not included in the assessment of his assets for his claim for social security payments. The Tribunal accepted the respondent’s evidence that the disclosure was not made because the respondent was not aware that he owned the property. The property had been purchased by his parents in his name. They intended on keeping the purchase a secret until he reached a certain age. The respondent had a significant disability and was cared for by his wife. The Tribunal found that the respondent had not knowingly made a false statement. The Tribunal found that not waiving the debt would cause significant disruption to the respondent’s life. The debt was waived in full and the Department was ordered to repay any amounts previously deducted.