Sesalim v Secretary, Department of Social Services [2018] FCA 1159

Sesalim v Secretary, Department of Social Services [2018] FCA 1159

The Tribunal erred in failing to consider centrally relevant and probative evidence—specifically, a neurosurgeon's report relating to the permanence of Mr Sesalim's spinal canal stenosis and psychological reports relevant to his mental health impairment assessment. This amounted to a failure to properly engage with the statutory assessment task required by the Determination and a constructive failure to exercise jurisdiction, warranting the appeal be allowed and the matter remitted for reconsideration. The related appeal by the Secretary was dismissed as the Tribunal's reasons and findings on severe impairment were adequately supported and no legal error was demonstrated.

Parties
Applicant in VID 1297/2016; Respondent in VID 166/2017: Dean Al Sesalim; First Respondent in VID 1297/2016; Applicant in VID 166/2017: Secretary, Department of Social Services; Second Respondent in VID 1297/2016: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
07 August 2018
Procedural Posture
Judicial Review/statutory Appeal on a Question of Law / Federal Court Appeal From Administrative Appeals Tribunal Decisions; Related Appeals Heard Together
Outcome
Appeal in VID 1297 of 2016 (Sesalim) allowed; time to appeal extended; matter remitted to Tribunal. Appeal in VID 166 of 2017 (Secretary) dismissed.
Legal Topics
Disability Support Pension, Impairment Tables, Administrative Appeals Tribunal Review, Statutory Interpretation, Judicial Review
Administrative Law Social Security Law Disability Support Pension Impairment Tables Administrative Appeals Tribunal Review Statutory Interpretation Judicial Review

Case Brief

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Parties

Dean Al Sesalim

Applicant in VID 1297/2016; Respondent in VID 166/2017

Secretary, Department of Social Services

First Respondent in VID 1297/2016; Applicant in VID 166/2017

Administrative Appeals Tribunal

Second Respondent in VID 1297/2016

Procedural Posture

Judicial Review/statutory Appeal on a Question of Law / Federal Court Appeal From Administrative Appeals Tribunal Decisions; Related Appeals Heard Together

Legal Issues

  1. 1 Whether Tribunal erred in not taking into account material relevant to assessing permanence of spinal condition under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
  2. 2 Whether Tribunal failed to understand/statutory assessment task for mental health impairment under Table 5
  3. 3 Whether Tribunal adequately considered and explained assignment of moderate/severe rating for mental health impairment

Ratio Decidendi

The Tribunal erred in failing to consider centrally relevant and probative evidence—specifically, a neurosurgeon's report relating to the permanence of Mr Sesalim's spinal canal stenosis and psychological reports relevant to his mental health impairment assessment. This amounted to a failure to properly engage with the statutory assessment task required by the Determination and a constructive failure to exercise jurisdiction, warranting the appeal be allowed and the matter remitted for reconsideration. The related appeal by the Secretary was dismissed as the Tribunal's reasons and findings on severe impairment were adequately supported and no legal error was demonstrated.

Court Disposition

Appeal in VID 1297 of 2016 (Sesalim) allowed; time to appeal extended; matter remitted to Tribunal. Appeal in VID 166 of 2017 (Secretary) dismissed.

Orders

  • Time for applicant to institute appeal in VID 1297 of 2016 extended to 31 October 2016.
  • Parties to file proposed orders or notify issues in dispute for relief within two weeks after reasons; failing agreement, Court to determine relief issues.