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Post by Banjo on Jun 7, 2016 9:10:19 GMT 7
www.austlii.edu.au/au/cases/cth/AATA/2016/364.htmlI'm not going to post the result in it's entirety but it's interesting for a number of reasons. The Secretary relies on the evidence of ‘Michelle’, a rehabilitation counsellor, in a Job Capacity Assessment report dated 2 April 2015. The Assessor reported that Mr Root had a baseline work capacity of 8 to 14 hours per week and that his work capacity would increase to 15 to 22 hours per week within two years with intervention. The interventions were “alternative medical treatment options”, “counselling” and “vocational rehabilitation”.Furthermore, the Secretary argued that ‘Michelle’s” evidence should be given greater weight than evidence of Mr Root’s work capacity given by Dr Moreton. The reason for this was said to be that Michelle had specialist expertise in respect of rehabilitation, whereas Dr Moreton did not.So Centrelink relied 100% on the report from the JCA, over ruling the appellant's medical professional. Also, the disability was Chronic Fatigue Syndrome something that may need considerable professional expertise to diagnose. I liked the Tribunals reply here. I prefer the evidence of Dr Moreton to that of Michelle. If Michelle has specialist expertise in rehabilitation, as well she might, there is no present evidence to support her assessment on medical issues in Mr Root’s case. The assessment of his medical condition and his medical prognosis is central to an assessment of his capacity for work. If vocational rehabilitation intervention is expected to increase his work capacity within two years, one might expect to see the result of that from similar intervention recommendations in 2011 and 2012. But no such improvement is apparent on the medical evidence. One for the good guys.
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Post by Deleted on Jun 7, 2016 9:21:00 GMT 7
Michelle now cleans the coffee machine after Hank lost yet another SSAT appeal.................
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Post by Deleted on Jun 7, 2016 9:43:48 GMT 7
It's about time they got taken to task for using glorified burger flippers in JCA's to overrule doctors who are often specialists in their field. My first JCA years ago was conducted by a girl barely out of school and I actually asked her what her qualifications were and got a terse "we're fully trained" reply.
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Post by murphy on Jun 7, 2016 11:34:40 GMT 7
I only wish Centrelink considered the text of these appeals.
It certainly gives us hope that there are decent, logical Tribunal members around.
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Post by Banjo on Jun 7, 2016 12:38:04 GMT 7
I'd like to think that it went into case law.
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Post by murphy on Jun 7, 2016 12:52:27 GMT 7
I understood Tribunal interpretations of legislation are not binding in the way that court decisions must be followed, they're just persuasive. If you go to Federal Court then you start creating decisions that will bind - until government legislates around them.
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Post by Banjo on Jun 7, 2016 14:08:54 GMT 7
Yes, if you get enough of them it works. We made them change the law on residency/portability; before dspoverseas came along people would just accept Centrelink's ruling but as we clocked up the SSAT wins they had to rethink.
When their own staff were saying things like this on the record...
“There is no minimum time required for which they must remain in Australia to reset the 13 week portability clock and so technically they may land in Australia and leave the same or the next day and be payable for a further 13 weeks”. (Jane **********).
“As long as his departure is not a permanent departure but continues to be a temporary departure has entitled to continuing payment”. (Monica *******).
(see why you should get your file?)
It was game over.
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Post by nomadic on Jun 7, 2016 18:46:07 GMT 7
I always found the AAT members to be fair and impartial even though I lost. One even apologised for not being able to help me, (it was the law), as he saw the totally illogical madness of the situation.
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Post by nomadic on Jun 7, 2016 18:50:03 GMT 7
Should of added that i lost primarily because I went there on my own with no legal help at that point and without absolute proof. I am an under educated dill who was encouraged by C/L that I didn't need a lawyer. Everybody who goes to the AAT is told the same. DO NOT TRUST THEM. EVER!
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Post by krystal on Jun 7, 2016 20:49:30 GMT 7
It's nice to see a win for a change. YAH!!
I just got a survey for the AAT experience and I was scathing. There seems to be no rhyme or reason to whether they just back up Centrelink or actually look at the details of the case.
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Post by gized on Jun 8, 2016 7:54:20 GMT 7
I'm sure you all know, you can have your submission on the papers. ]One does not have to attend. Prepare your submission, and give it to someone to read it, check it again. Add all your bits and bobs. Include receipts, print out from chemist on all meds you have purchased in the past 2 years or more.
Remember read as many cases as you can from the AAT site. See what the members are saying, how the sections of the act are interpreted what has to be met.
Once you have read over 100 cases, you will master legal reasoning.
It's function based not diagnostic. Function , how does it affect you to function?.
Can you work a sedentary task for 3 hours without a break?
Do you require assistance? This means a person.
Are you if not, sleep affects function. No sleep, no function to ensure the day.
Self reporting not enough unless what you are reporting about your condition, function, is corroborated by the dr or specialist you see.
Do a history of your life, up until you got on a DSP and how you ended up on it.
Are you still not functioning? Are you worse, do you have more conditions? Add them all and report how it affects you to function and not function 15 hours or more per week. The programme of support will not assist you as you cannot maintain that and even if it did you would not be able to hold a job for at least 15 hours or more for the next 2 years without requiring time off.
Hope this helps some one in the forum.
I am no expert but have been reading the Social security and social security admin act for over 25 years.
Gized
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Post by nomadic on Jun 8, 2016 12:09:52 GMT 7
Krystal, I believe Gized is spot on. I don't think the AAT is connected to C/L at all in regards to fairness and impartiality. They want the facts only. They will have your file and you need to show new evidence or be able to point out where C/L were wrong in the first place. And they often are either by incompetence or on purpose. I had to get new neuro evidence 12 years or more ufter my stroke under the latest tables. More cost to tax payers I may add. If they had of given me all the money my appeals cost them rather than fight me I would be very rich today and not on DSP. The illogical madness of the entire system has to be experienced to be believed.
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Post by gized on Jun 8, 2016 12:32:44 GMT 7
I am telling you all, do not give up!
Read the cases.
Here goes like this-
The new tables will be used to assess DSP reviews, cancels etc.
Is the person qualified for DSP s 94 or the SS Act. (a) (b) and (c)
Impairment ratings- ratings under the tables, find the table you come under, e.g lower limbs, respiratory etc.
Look at the descriptors, look at the functional impairment.
Ask your dr to look at the tables and see where you come under.
Each condition is given a rating. 5, 10 0r 20.
Remember function based, not diagnostic.
can you do this repetitively, ongoing without assistance?
Assistance means an aid, help etc. you get 5 if you can complete most of your day to day activities without assistance.
10 is if you require occasional assistance with day to day stuff.
If you get 20 points, it can be assumed that you cant work 8 to 14 hours per week, and not able to work within the next 2 years, even with a program of support.
Read if you can the cases.
Share your experiences with us on the forum.
Those who receive letters for review, or cancellation etc, share your experiences here.
We need to see whats going on.
We can only help each other by sharing knowledge.
I hope this info is useful.
Gized
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Post by krystal on Jun 8, 2016 16:35:24 GMT 7
I'm sure you all know, you can have your submission on the papers. ]One does not have to attend. Prepare your submission, and give it to someone to read it, check it again. Add all your bits and bobs. Include receipts, print out from chemist on all meds you have purchased in the past 2 years or more. Remember read as many cases as you can from the AAT site. See what the members are saying, how the sections of the act are interpreted what has to be met. Once you have read over 100 cases, you will master legal reasoning. It's function based not diagnostic. Function , how does it affect you to function?. Can you work a sedentary task for 3 hours without a break? Do you require assistance? This means a person. Are you if not, sleep affects function. No sleep, no function to ensure the day. Self reporting not enough unless what you are reporting about your condition, function, is corroborated by the dr or specialist you see. Do a history of your life, up until you got on a DSP and how you ended up on it. Are you still not functioning? Are you worse, do you have more conditions? Add them all and report how it affects you to function and not function 15 hours or more per week. The programme of support will not assist you as you cannot maintain that and even if it did you would not be able to hold a job for at least 15 hours or more for the next 2 years without requiring time off. Hope this helps some one in the forum. I am no expert but have been reading the Social security and social security admin act for over 25 years. Gized Yep, did all that. My DSP was denied "as there is no persuasive evidence that she can not do a training activity in the next two years" Even though it had been 2 years since my original claim and I hadn't been able to do a training activity in that time. And even if I had, it would not have helped me work without a Program of Support. I can work zero hours without a Program of Support/Interventions and in the two years since my original application or anytime in the future, that fact is not going to change. The Senior Member actually says in the decision that " the training activity does not need to exist". Here's the kicker though - The Senior Member DID NOT hear this part of the case at the hearing. Not one question about it. She made the decision on the basis of Post Hearing Submissions from the AGS. Totally random, nonsensical and arbitrary.
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Post by nomadic on Jun 8, 2016 18:12:12 GMT 7
Krystal, every post of yours I read continues to make me think you definately need legal people who are experts in administrative law to help you. Try the law institute for a pro bono lawyer who is an expert in the field. I don't see much hope on what you are going through unless you do. I continued on my own for 8 years when a lawyer on day one would have won out. Had it not been for legal advice to begin with from legal aid followed by the lawyer I have no doubt I would be homeless in oz or even worse today. Keep fighting though.
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