Social Security Rights Review – Decisions of Interest February-June 2019

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Thomson and Secretary, Department of Social Services (Social services second review) [2019] AATA 1094 (20 May 2019)

This case concerned an appeal against Centrelink’s decision to reject an application for DSP by a person suffering from chronic pain. It provides guidance on two significant aspects of DSP eligibility:

  • how the requirement that a condition be ‘fully treated’ applies to chronic pain which has not been diagnosed as stemming from a specific underlying condition; and
  • whether nanny and volunteer work shifts in excess of 3 hours demonstrate an ability to sustain work activity.

Ms Thomson’s application for DSP was rejected on the basis that her impairment was not of 20 points or more under the Impairment Tables and thus did not satisfy section 94(1)(b) of the Social Security Act 1991. The Secretary submitted that Ms Thomson’s condition was not fully treated on the basis that further treatment options were available, including attending a pain management program, attending a physiotherapist and undertaking a laparoscopy that could determine the underlying source of the chronic pain. The Tribunal rejected the contention that a chronic pain condition could not be considered to have been fully treated unless and until all other reasonably possible diagnoses had been excluded. In doing so it quoted several Federal Court decisions related to chronic pain: [46-60]

The Secretary further pointed to the fact that Ms Thomson had been able to engage in paid work as a nanny (of eight hours per week, spread over two days) and voluntary work (involving shifts often in excess of 3 hours) on a regular basis. On this basis, she was said to be able to sustain ‘work activity or other tasks for a total of more than 3 hours a day’ within the meaning of Table 10 and to not have a continuing inability to work.

The Tribunal rejected this submission on the basis that these activities ‘were not undertaken in the context of a normal, open, workplace, but, rather, the workplace of a benign employer’: [98]. This was based on the fact that the shifts at the volunteer role often involved watching movies with hospital patients or comforting infants or children who were unable to participate in physical activities, and that shifts at both her roles were often cut short or had long periods in between them.

Lastly, the Tribunal stated their reluctance to accord significant probative value to the job capacity assessment report in the matter. This report suggested that Ms Thomson’s work capacity is expected to increase with disability specific intervention, such as vocational counselling and post-placement support. The Tribunal pointed out that report was prepared by someone with no relevant specialised knowledge and experience and did not explain why any of the identified forms of intervention supported an expectation of increased work capacity: [118-126].

The full text of the decision can be accessed here


Brzozek and Secretary, Department of Social Services (Social services second review) [2019] AATA 1306 (17 June 2019)

This case concerned two people (Mr Shaw and Ms Brzozek) who had previously been in a relationship and separated but had continued living together for financial reasons. The main issues raised by this case are:

  • the assessment of whether two people living separated under one roof are members of a couple, when one of the people is caring for the other; and
  • how economies of scale and shared space contribute to the assessment of member of a couple issues.

Ms Brzozek was Mr Shaw’s carer and both had been receiving Centrelink payments at the Single rate after filing a ‘Relationship details – separated under one roof’ form in 2010 and 2013. In 2017, they both lodged another copy of this form with new information, at which point Centrelink assessed them as being in a couple under section 24 of the Social Security Act 1991 and Mr Shaw’s pension rate was reduced. The Secretary submitted that the two were members of a couple due to the benefit they received from pooling resources for accommodation and living expenses, sharing duties, having no separate spaces in the house and sharing a bed at times. The Applicants submitted that they had only shared a bed for a brief period of time, took separate holidays, no longer had a joint home loan and shopped individually. The Member decided that they were not members of a couple. Specifically, he considered that due to the shopping and cooking being done separately economies of scale did not apply and the applicants had only shared a bed briefly for health reasons. The written evidence of the Applicants’ former financial planner about their relationship and financial situation was particularly influential in the Member’s decision.

The full text of the decision can be accessed here


Marshall and Secretary, Department of Social Services (Social services second review) [2019] AATA 670 (4 April 2019)

In this case the Tribunal shortened a compensation preclusion period on the basis of special circumstances under s1184K(1) of the Social Security Act 1991. This case provides guidance on:

  • whether financial costs related to divorce following the receipt of compensation can constitute special circumstances for the purposes of a compensation preclusion period; and
  • general assessment principles for special circumstances in relation to compensation preclusion periods.

Mr Marshall’s application for Newstart in April 2018 was rejected as a result of his having received a compensation payment in May 2017, which imposed a compensation preclusion period until December 2020. On previous appeals, the ARO and AAT1 had shortened this period to May 2020 and March 2020 respectively. This was based on Mr Marshall’s financial circumstances, medical conditions and the need to establish a new home as a result of divorce. Shortly after receiving the compensation payment, Mr Marshall split from his wife and spent considerable sums of money on legal fees related to the divorce. He had to establish a new home for himself, and buy a car for the purposes of making the six hour drive from his home to his wife’s home to fulfil the custody arrangements in relation to his two sons. The car had to be comfortable enough to accommodate his spinal injuries. The Tribunal accepted these as special circumstances, calculating a reduction in the preclusion period by adding the amounts spent by Mr Marshall on legal, motor vehicle and house establishment costs. A new preclusion period of 19 February 2020 was set.

The full text of the decision can be accessed here