Atieh and Secretary, Department of Employment and Workplace Relations

[2006] AATA 814

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 814

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/73

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MUSTAFA MAHMOUD ATIEH

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date22 September 2006

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

Social Security benefits - disability support pension (DSP) - eligibility - medical evidence - portability provisions - international agreement - Australia - United States - portability period - whether extension permitted - Social Security Appeals Tribunal

Social Security Act 1991 and Amendments

Social Security Administration Act 1999

Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003

Social Security (International Agreements) Act 1999

Guide to Social Security Law

Manolev and SDFCS (2005) AATA 398

Alimi and SDFCS (2004) AATA 621

Young & SDFCS (2004) AATA 392 (19 April 2004)

Materek and SDFCS (2002) AATA 344 (8 April 2002)

Tsakrios and SDSS (1994) AATA 9313

Bourboulas and SDSS (1997) AATA 12045 (27 July 1997)

Vrdoljak and SDFCS (2000) AATA 629 (1 August 2000)

REASONS FOR DECISION

22 September 2006 Associate Professor B W Davis AM (Part-Time Member)   

Decision Under Review:

1.      The decision under review is a decision made by a delegate of Centrelink to pay the applicant, Mustufa Mahmoud Atieh, disability support pension (DSP) for a period of 13 weeks only, after Mr Atieh departed from Australia on 23 December 2005.

Issue:

2.      The length of time DSP is payable to Mr Atieh following his departure from Australia on 23 December 2005.

Legislation:

3.      The relevant legislation is the Social Security Act 1991 and Amendments, especially Sections 23(4B), 1213, 1217, 1218AA, 1218C. Note also the Social Security Administration Act 1999, in particular Schedule 13, setting out provisions of the agreement between Australia and the United States of America in respect of payments of welfare benefits and the portability of pensions between the two nations.

4.      Note also the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003, amending the portability period of pensions, also policy provisions set out in the Guide to Social Security Law at 1.1.5.100.

Standard of Proof:

5.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background:

6.      The applicant, Mustufa Mahmoud Atieh, has been in receipt of Australian disability support pension (DSP) since November 2002.  He has the conditions of depression, post-traumatic stress disorder (PTSD) and an arm injury.  He is neither severely disabled or terminally ill, according to claims by the respondent.

7.      Mr Atieh, accompanied by his wife and four children, left Australia on 23 December 2005.  The family first travelled to Jordan to visit Mr Atieh’s dying father and then travelled on to the United States of America, their date of arrival not currently known.  Mr Atieh’s father died on 25 February 2006 and it appears Mr Atieh was not undergoing treatment for PTSD at any stage during this period.  The family have not returned to Australia.

8.      On 16 January 2006 Centrelink decided Mr Atieh was not severely disabled within provisions of the Social Security Act 1991 and Amendments, thus payment of DSP could not continue beyond the thirteen weeks portability period permitted, which ended on 23 March 2006. The matter was referred to an Authorised Review Officer (ARO) who on 7 February 2006 affirmed the decision. Payment of DSP ceased on 24 March 2006.

9.      The applicant appealed to the Social Security Appeals Tribunal (SSAT) which conducted a hearing in Hobart on 3 May 2006.  Mr Atieh gave evidence by telephone from the United States.  The SSAT decided to affirm the original decision ie to limit DSP portability to 13 weeks from date of departure from Australia (ie 23 December 2005).  The applicant then requested review by the AAT, the date of applciation being 25 May 2006.

10.     In conducting its review the SSAT noted that according to medical evidence Mr Atieh was born in Kuwait of Egyption parents.  The family suffered a number of difficulties prior to and during the Gulf War and moved to Jordan.  The applicant came to Rockingham , Western Australia, at age twenty-eight and became involved in management of a kebab shop.  Following separation from his girlfriend he became engaged to a cousin.  This led to an assault by two men, during which he suffered an arm injury, one of his assailants was found not guilty and the other was fined.  He lost faith in the Australian criminal justice system and became extremely depressed, recognising his own problems but becoming very wary of other individuals.  He does not appear to have sought counselling or treatment for PTSD prior to leaving Australia.

11.     Medical records indicate the arm injury occurred in October 1998, but it was some time later, around 2000-2001, that his depression was diagnosed, with some disagreement amongst treating doctors and specialists as to when and if he might be capable of returning to work.  The SSAT considered the preferred opinion was that of Dr Adam Brett, a consultant forensic psychiatrist, who believed the applicant’s depression and post-traumatic stress disorder were eminently treatable, given assertive and comprehensive help, but the timeframe was unclear.  Dr Brett considered Mr Atieh possessed a good work ethic, but had become disillusioned by his experiences.  The SSAT decided Mr Atieh was not severely disabled and his impairments did not preclude him from doing work of 8 hours per week or more within the next two years.

The AAT Hearing:

12.     The AAT hearing was conducted in Hobart on 16 August 2006.  Mr Atieh was unrepresented by counsel and gave evidence by telephone from the United States of America.  The respondent was represented by Mr Brian Sparkes.  No witnesses were called.

13.     Mr Atieh was affirmed and invited to present his case.  The applicant claimed there were a number of medical reports demonstrating he had an ongoing inability to work for at least two years prior to his departure for Jordan and the USA in December 2005.  He placed considerable reliance upon reports from his treating GP, Dr L Sam, who as late as January 2006 had confirmed he would not be able to work for at least two years.

14.     Mr Atieh said he believed Centrelink had not dealt with him in an honest manner, using words in documents that were not what he had said.  They claimed he had refused treatment for his disabilities, but he had never refused treatment.  Centrelink had also failed to pay for his medications, but he had received medications in the United States from a Community Centre in Ohio.  He and his family were now trying to return to Australia, but lacked the funds to do so, despite approaching the Australian Embassy in Washington.  It was Centrelink’s fault they were in the United States and the agency was responsible for getting them home.

15.     He had left Australia at a time he could not deal with people or trust them but his depression was now worse than before.  He had never mentioned staying in the US and only went there because he was considering holding an art exhibition.  He would not have gone if he had known they would cancel his disability pension after a time.  Centrelink had informed him he could receive DSP in America, provided he proved he was living there.

16.     Under cross-examination Mr Atieh stated he had taken the entire family of himself, wife and four children to Jordan to see his dying father, the airfares being met by a brother.  He was asked whether he had purchased an on-ticket from Jordan to the US or merely a return ticket between Australia and Jordan.  Mr Atieh’s replies were somewhat unclear, but it appears the initial intention was to return to Australia from Jordan, but the tickets were cashed in for return tickets Jordan-USA-Jordan.   The return to Jordan segment expired some months ago and the family does not have the financial resources necessary to return to Australia.  The applicant’s brother in the US is not in a position to fund six persons.  Mr Atieh does not possess property or possessions in Australia, apart from a few stored items, and thus cannot raise funds himself.

17.     Having departed Australia on 23 December 2005, the family left Jordan for the US around 17 March 2006.  The applicant said that Centrelink had advised him on 20 December 2005 that DSP could be paid to him in the USA, if he confirmed he was living there.  It came as a shock when Centrelink wrote on 17 January 2006, indicating the portability period for DSP was limited to 13 weeks (ie to 23 March 2006).  Mr Atieh claims he did not receive this information personally by letter;  his brother in Australia was supposed to keep him informed by telephone, but it was only after he arrived in America that he learnt from his brother in Ohio about the limited portability period. 

18.     Mr Sparkes asked the applicant whether he was aware that if he sought payment in the US, under the International Agreement, on grounds of severe disability, he would only receive a fraction of the full Australian DSP, because of US-Australian working life residency requirements.  Mr Atieh had arrived in Australia in 1993 and left in 2005, effectively he would be paid only 13 thirthieths or less than half of the DSP rate.  It was unlikely the family could live on this limited amount of support.

19.     Mr Atieh was asked whether he had sought counselling or psychiatric treatment prior to leaving Australia as medical reports indicated his depression could have been treated.  He said he refused to undergo such assessments, being very unwilling to disclose his personal life to others, even his wife.  He was now undergoing counselling in the USA, from April 2006, because his depression and mental state had worsened.

20.     In closing submissions Mr Atieh said his disabilities prevented work from October 1998 onwards, but Centrelink had assumed that he was going to the US to seek employment.  This was wrong, he was merely contemplating an art exhibition, which never eventuated because he could not fund the framing of pictures and other expenses.  He and his family were now in dire circumstances because of mistakes made by Centrelink and it was the responsibility of the Australian government to return the family to Australia.

21. In response for the Department Mr Sparkes said the applicant appeared to have placed too much reliance upon the consent agreement AAT (W2003/172) of 10 June 2004, which merely indicated Mr Atieh met the requirements of Section 94 of the Social Security Act 1991, in that he was unable to perform 30 hours of work at the time or benefit from rehabilitation training and was therefore entitled to DSP. This did not imply he was severely disabled or could not recover from some of his disabilities or was entitled to unlimited portability of DSP at some later date. Legislative changes made in 2003 reduced the overseas portability period for DSP to 13 weeks applicable to all applicants under Section 1217 of the Act.

22.     Mr Sparkes said that Mr Atieh’s decision to take his family to Jordan and on to the United States were purely personal decisions and there was no evidence some event during the portability period prevented them returning to Australia, thus discretionary portability under Section 1218 of the Act did not apply.  There is clear medical evidence from Dr Brett and HSA that Mr Atieh’s disabilities are capable of treatment and he is now undergoing counselling in the USA, having refused it in Australia.  The portability period for DSP is 13 weeks and the order sought by the respondent is that the decision under review be affirmed.

Analysis:

23.     The matter before the Tribunal is a de-novo merits review of an administrative decision and the Tribunal, in arriving at a correct and preferable decision is bound to apply the law.  The Tribunal must take into account all available evidence, statutory and policy provisions and any relevant prior case determinations (For confirmation see Re Drake and Minister for Immigration and Ethnic Affairs (1979) 24 ALR 557, Re Drake No 2 (1979) 2 ALD 634 and Re Walsh and SDFCS (2002) AATA 881 (4 October 2002)).

24.     In the current case there are two principal issues before the Tribunal, namely:

(a)whether the applicant was severely disabled on the date of departure from Australia;  and

(b)the length of time DSP is payable to Mr Atieh, following departure from Australia on 23 December 2005.

25. Provisions relating to Disability Support Pension (DSP) and severe disability are set out in Section 23(4B), 94, 1215 and 1217 of the Social Security Act 1991 and Amendments. Note also Section 1.1.5.110 of the Guide to Social Security Law.

26. Section 23(4B) of the Act states that a person is severely disabled if the applicant:

“has a physical, psychiatric or intellectual impairment, or 2 or all of these impairments, which make the customer:

totally unable to work for at least the next two years;  and

unable to benefit within the next two years from participation in a program of        assistance or a rehabilitation program;  or

is permanently blind.

An applicant is accepted as being severely disabled if their impairment prevents them from:

doing any work for 8 hours or more for the next 2 years; and

benefiting from training, education or rehabilitation to the extent of being able       to work at least 8 hours a week”.

27.     The Guide to Social Security Law at Section 1.1.5.100 makes it clear that persons who have been accepted as having a manifest inability to work are not necessarily severely disabled.  The critical matter is the severity of the condition.  Mr Atieh appears to believe that the consent decision of 10 June 2004 automatically guaranteed him DSP for life.   This is incorrect, all Australian social welfare benefits undergo periodic review in terms of legislative or policy change and individual circumstances affecting benefit rates.  Similarly, overseas portability provisions may change from time to time.

28.     Mr Atieh also appears to believe Centrelink should provide medications and arrange personal medical treatment.  Centrelink itself is not responsible for such functions, but can assist with advice to applicants about where and how such services may be obtained.  Centrelink did suggest to Mr Atieh that he undergo assessment to identify prospective treatment and rehabilitation opportunities.  He chose to ignore the offer on grounds he would not supply any personal information, but appears to have done so in the United States.

29.     In determining whether the applicant was eligible to receive DSP or was severely disabled at the time of leaving Australia, there are many medical reports dating back to 1999, but the evidence is somewhat inconsistent.

30.     Medical reports indicate Mr Atieh was initially treated for his arm injury alone, but following assessments by a clinical psychologist at the Perth Hospital in 2001, it was recognised some psychological problems existed as the applicant did not attend planned appointments to assist his recovery.  In September 2001 an assessment by Health Services Australia (HSA) determined Mr Atieh was suffering from moderate to severe depression but that he would be able to return to work within 6 to 12 months.  This was confirmed by his GP (Dr Aviles) in November 2001 and March 2002, who considered he could return to work within 2 years, but by June 2002, the same doctor was more pessimistic about his prospects.

31.     It should be noted that some of the various medical reports involve the ticking of boxes without significant comment on the applicant’s condition and this renders subsequent reconsideration difficult.

32.     A letter from CRS (Commonwealth Rehabilitation Services) dated 23 July 2003 noted that Mr Atieh’s then treating doctor (Dr L Sam) had referred the applicant to a clinical psychologist whose report dated 24 July 2003 indicated she could not assist Mr Atieh because ‘he did not have the flexibility to make changes in his outlook’.

33.     A further report by Dr Adam Brett, Consultant Psychiatrist, dated 13 January 2004 assessed the applicant as having fairly severe depression and features of post-traumatic stress disorder (PTSD).  Dr Brett’s comprehensive assessment and report suggested Mr Atieh would benefit from psychological interventions and he would be capable of returning to the workplace with some rehabilitative counselling.  In a follow-up letter dated 2 March 2004, Dr Brett said:

“I believe that Mr Atieh has significant problems in both depression and post traumatic stress disorder.  These impact on his ability to return to work.  Both disorders are imminently treatable however they will need assertive and comprehensive help.  If Centrelink are unavailable to give onsite psychological rehabilitative counselling then I do not believe he would be able to return to work within two years....Mr Atieh’s case is complicated by the fact this his disorder prevents him from actively seeking support given his perception of the help he has received from government agencies”.

34.     The most recent treating doctors report by Dr Sam, dated 6 January 2006 after the applicant had departed Australia on 23 December 2005, does not expand on his depressive illness, merely stating it is being treated with Luvox and the applicant would not be able to work in the next 2 years.

35.     Subsequent medical reports from the US indicate the applicant is now pursuing treatment for his disabilities, is only interested in self-employment and has tried to operate a food van, but faced licensing difficulties.  This implies he is not severely disabled and able to work some hours, although the overall prognosis is not clear.

36.     Having weighed all the medical evidence the Social Security Appeals Tribunal (SSAT) accepted Mr Atieh suffered from an arm injury, depressive illness and PTSD, but nonetheless considered Dr Brett’s detailed analysis was persuasive and that given appropriate psychological treatment there were prospects the applicant would be able to return to work, date unspecified.

37. Having carefully re-evaluated all available medical evidence the current Tribunal concurs with the SSAT’s view that Mr Atieh was qualified to receive DSP at the time of his departure from Australia, but there is no claim or evidence to suggest that he was severely disabled within the meaning of Section 23(4B) of the Social Security Act 1001 at the date of departure.

38.     The next matter to be considered is the DSP portability issue.  The Tribunal agrees with the respondent there are four possibilities to be examined in respect of the DSP portability period, given the international agreement with the USA:

(a) Section 1217 of the Social Security Act 1991, dealing with ‘basic’ portability of DSP overseas;

(b) Section 1218AA providing indefinite expanded portability where amongst other things, the recipient is severely disabled and terminally ill;

(c) Section 1218C, involving discretionary extension where an event has happened during the portability period that prevents the recipient returning home; and

(d) Section 11 of the Social Security International Agreements Act 1999 and Article 2 of the USA Agreement where payment of DSP occurs under the USA Agreement but the recipient must be severely disabled.

39. Basic portability under Section 1217 of the Act was amended from 1 July 2004, reducing the allowable overseas absence from Australia for individuals with DSP from 26 to 13 weeks. There is a savings provision in Schedule 6, clause 19 of the amending Act which applies only to those persons who were overseas on 1 July 2004, who already had indefinite portability and met other requirements. The savings provision does not apply in Mr Atieh’s case.

40. The applicant also fails to meet the provisions of Section 1218AA regarding indefinite extended liability, where amongst other things, the recipient is severely disabled and also terminally ill.

41. Section 1218C of the Act also does not apply to Mr Atieh since there is no evidence of an event occurring during the portability period that prevented him from returning home. He did visit his ailing father in Jordan, but the latter died on 25 February 2006, nearly a month prior to the end of the portability period (23 March 2006).

42.      There is limited discretion available to the Secretary of the Department in the case of an extreme event or emergency situation, such as a natural disaster, political unrest, robbery or serious crime, to extend the portability period for a limited time.    The Guide to Social Security Law says at 7.1.5.51:

“A discretionary extension must be for a definite period, during which time the customer’s situation is expected to change and enable return to Australia.  Should a person be unable to return to Australia on expiry of the new allowable portability period, the case should be assessed and a further definite period may be allowed if appropriate”.

This provision has been tested in a number of prior AAT cases, such as Manolev & SDFCS (2005) AATA 398, Young and SDFCS (2004) AATA 392 and Alimi & SDFCS (2004) AATA 621.

43.      The intention that this provision be given limited effect is clear from the use of words such as ‘serious, grievous, extreme or emergency’.  It is intended to apply in a limited timeframe and permit the person involved to return to Australia.  No such event is recorded during Mr Atieh’s portability period in Jordan or upon arrival in the United States, thus limited extension is not triggered.

44. Section 11 of the Social Security International Agreements Act 1999 describes basic provisions for making of a payment under an agreement outside Australia (eg the United States of America), but this can only be paid if the applicant is severely disabled, which is not the current case.

45.      To Summarise:

(a)      Having conducted a de-novo review the Tribunal finds on the balance of probabilities that Mr Mustafa Mahmoud Atieh was not severely disabled on the date he left Australia (23 December 2005).

(b) Under Section 1217 of the Social Security Act 1991 and Amendments the maximum portability period for DSP payment outside Australia was 13 weeks, ending 23 March 2006.

Decision:

46.      The decision under review is affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  16 August 2006
Date of Decision  22 September 2006
Representative for the Applicant    Applicant appeared on his own behalf
Counsel for the Respondent          Mr B Sparkes
Solicitor for the Respondent          Centrelink Legal Services