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Post by murphy on Feb 8, 2017 15:06:40 GMT 7
Hmm, the member didn't quite get it right. The Act, which usually allows for the member to summon witnesses, excludes the Social Services division. The member does not have the power. See below. The Federal Court will be where you can subpoena the JCA.
Krystal, the JCAs certainly know that their work will never be audited and claimants have no redress until they reach Court level.
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 40A
Power to summon person to give evidence or produce documents (1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
(2) The President or an authorised member may refuse a request to summon a person.
(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:
(a) the summons or another summons requires the person to appear before the Tribunal; or
(b) the Tribunal directs the person to attend the hearing.
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Post by krystal on Feb 8, 2017 15:21:27 GMT 7
Level 1 AAT Tribunal for a Centrelink Decision is held within the Social Services and Child Support Division.Level 2 AAT Tribunal for a Centrelink Decision is held within the General Division. Going by the above subsection Murphy has provided, they can't issue a summons at Level 1 but there doesn't seem to be a "get out clause" for Level 2. Now isn't that interesting?
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Post by murphy on Feb 8, 2017 15:26:45 GMT 7
Yes, but the general rules of evidence, including the Evidence Act, don't apply to the AAT at any level. An applicant can't compel a witness, nor can they reference a legislative imperative that the member do so.
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Post by krystal on Feb 8, 2017 16:16:42 GMT 7
I agree Murph, you are quite correct.
I was thinking more along the lines of, if and when, at the AAT Level 2 hearing, the Tribunal Member is supposed to give both the Applicant and the Respondent a chance to ask questions.
If at this time the Applicant asked questions of the "decision-maker" (In the Tribunal Guidelines the Respondent is referred to as the "decision-maker") that the Centrelink Lawyer wouldn't or couldn't explain the reasoning behind what the decision-maker stated in the JCA, the Tribunal Member could ask for the "decision-maker" to appear for clarity.
For instance: Mr Centrelink Lawyer in the JCA it is stated that "I observed he was able to rise from the chair without assistance" , did you actually observe that I rose on the one leg that isn't damaged while supporting myself on the arms of the chair being, as it was, that there was a desk between us, the chairs were lower than the desk and you didn't have a clear view?
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Post by clay on Feb 15, 2017 5:58:14 GMT 7
Carrying on from my earlier posts starting on 20th Jan. Yesterday a social worker guy from a "not for profit" welfare advocacy group dropped by in hope of assisting with speedup of a Centrelink decision on our Aged Pension appns. He opined that since we were living on selldowns of ASX shares from my SMSF that no decision would be forthcoming before I exhausted that. I said to him "after all I have read" re asset test limit for us being $375,000 (outside family home) - and us not even having a third of that - I would be amazed if that were true. And if it were true why would not Centrelink have told me in September - "go away and apply again when your super is zero". He quoted some other cases he knew about. I just wondered what the opinion is here.
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Post by Denis-NFA on Feb 15, 2017 11:01:47 GMT 7
Carrying on from my earlier posts starting on 20th Jan. Yesterday a social worker guy from a "not for profit" welfare advocacy group dropped by in hope of assisting with speedup of a Centrelink decision on our Aged Pension appns. He opined that since we were living on selldowns of ASX shares from my SMSF that no decision would be forthcoming before I exhausted that. I said to him "after all I have read" re asset test limit for us being $375,000 (outside family home) - and us not even having a third of that - I would be amazed if that were true. And if it were true why would not Centrelink have told me in September - "go away and apply again when your super is zero". He quoted some other cases he knew about. I just wondered what the opinion is here. clayPlease take this as non financial advisory information but mere thoughts and reflections on your situation. I haven't checked up on your posts so if I have missed something please forgive me, or let me know. Anyway. And this all comes back to cost of transactions. I would suggest that whilst ever you are a member of a SMSF you will have a red flag against you and your partners OAP application. Rightly or wrongly. The sooner you quit/resign/dissolve the SMSF the sooner your application might be processed. Whether you did an off market transfer of those ASX shares to you or just sold them is your choice. Either way, once you have legally demonstrated that you are no longer a beneficiary/member of the SMSF then the powers that be can start to assess your application accordingly. I trust this makes some sense. All the best
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Post by Deleted on Feb 15, 2017 13:20:52 GMT 7
clay, I think Denis may be on to something. You said, "And if it were true why would not Centrelink have told me in September" The sad fact is Centrelink is not obliged to offer any information that is not specifically asked for! People who lose their jobs and have savings are regularly required to run down their savings in order to qualify for a benefit, which inevitably leaves them without a buffer. However I do not think this should or does apply to OAP I have found the info below on the DHS website and think it may apply to your situation. Also speak to your fund provider, after all it is what they are there for. www.humanservices.gov.au/customer/enablers/income-streamsWhat you need to tell us You will need to provide us with an Income Stream Schedule, using the Details of income stream product form (SA330), or a similar schedule from the provider of your income stream. The form or a similar schedule must be completed by your product provider or the trustee of the Self Managed Superannuation Fund (SMSF) or Small APRA Fund (SAF) or the SMSF administrator. This may also be worth a read:- www.moneysmart.gov.au/superannuation-and-retirement/self-managed-super-fund-smsfLike Denis though under the same caveat, I think liquid assets in your bank account is the way to go. With the little you have you cannot afford to keep frittering it away in order to live! The upside is you should be back payed from your application date. Just when you think you are out to pasture you enter a minefield. All the best, cheers bear
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Post by Deleted on Feb 22, 2017 16:05:37 GMT 7
Amputee with brain injury knocked back for disability pension Peter Hall, The Courier-Mail February 22, 2017 12:00am A MAN who lost his right arm and suffers from an acquired brain injury and Deep Vein Thrombosis has been told by the Federal Government he doesn’t qualify for a disability pension and should get a job. Doug Stubbs, from Collingwood Park, southwest of Brisbane, suffered horrific injuries when he had a stroke while riding his motorcycle and crashed into a truck in July 2015. The 55-year-old former transport operator has since been cared for by his wife, Sue, and undergone a series of surgical and specialist procedures. With mounting bills, Mr Stubbs applied for a disability pension, but was stunned when knocked back by Centrelink. He asked the Department of Human Services to take another look at the case and the Review Officer stood by the original decision. In the reply, the officer wrote that it was accepted Mr Stubbs had permanent conditions of ABI (Acquired Brain Injury), right arm amputation, DVT and multiple fractures. However, this did not generate enough points to qualify for a disability pension. “While I accept that your right, dominant hand is non-functional as a result of the amputation, there is no objective medical evidence to indicate that there is a severe functional impact on activities like turning the pages of a book, using a pen or pencil or using a keyboard or carrying most objects with your functional arm,’’ the officer said. The department believed he could work at least 15 hours a week in a sedentary role and put him on Newstart. His wife Sue said there was no way her husband could go to work with his disabilities. She said she very much doubted an employer would take him on at his age with his medical conditions. Another setback was he could not drive. “It’s ridiculous and we suspect it is all to do with the Disability Pension being more than unemployment benefits. DSP is around $725 per fortnight and Newstart is $488 per fortnight. “He has worked and paid taxes all his life and this is how the government treats him. He now feels disenfranchised. Drug addicts and alcoholics can get DSP.” Without DSP, he can’t access any State Government services or NDIS. The couple is taking the matter to the Administrative Appeals Tribunal on Thursday www.couriermail.com.au/news/queensland/amputee-with-brain-injury-knocked-back-for-disability-pension/news-story/73404f1b4132d6dc368b6d2b41360caa
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Post by clay on Feb 23, 2017 4:36:12 GMT 7
Pleased to report we are on the OAP now. No mention by them re my SMSF - But already big envelope in mail with forms for me to apply for pension from Paradiseia whence I was born. Despite it being obvious I do not comply with Paradiseia requirements that I had to have lived there for 9 years after the age of 73. I see the local office opens in a few minutes - must take all these forms down there. Are there any other surprises due to me?
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Post by Deleted on Feb 23, 2017 4:45:18 GMT 7
Pleased to report we are on the OAP now. No mention by them re my SMSF - But already big envelope in mail with forms for me to apply for pension from Paradiseia whence I was born. Despite it being obvious I do not comply with Paradiseia requirements that I had to have lived there for 9 years after the age of 73. I see the local office opens in a few minutes - must take all these forms down there. Are there any other surprises due to me? I wouldn't expect any more surprizes clay, however one can never tell when dealing with centrelink. BTW where is Paradiseia? Google doesn't know! lol
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Post by Denis-NFA on Feb 23, 2017 6:42:44 GMT 7
Pleased to report we are on the OAP now. No mention by them re my SMSF - But already big envelope in mail with forms for me to apply for pension from Paradiseia whence I was born. Despite it being obvious I do not comply with Paradiseia requirements that I had to have lived there for 9 years after the age of 73. I see the local office opens in a few minutes - must take all these forms down there. Are there any other surprises due to me? I wouldn't expect any more surprizes clay, however one can never tell when dealing with centrelink. BTW where is Paradiseia? Google doesn't know! lol bearI think it may be a reference to our shared "Paradise"!
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Post by Denis-NFA on Feb 23, 2017 6:51:19 GMT 7
“While I accept that your right, dominant hand is non-functional as a result of the amputation......" There is something deeply disturbing about this statement.
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Post by nomadic on Feb 23, 2017 8:18:57 GMT 7
This is just more evidence that nobody is immediately granted DSP anymore. 100% are denied and have to fight for it after that. Many think they cannot win and accept their fate. Only a massive media campaign will open the public eyes. And with most of the media against us I see little hope. Again defies belief. I have DSP and both arms so this guy is obviously far worse off than I am. GGGGRRRROOOOWWWWLLLL.
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Post by Deleted on Feb 23, 2017 9:06:45 GMT 7
Let's hope common sense prevails today!
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