Atkinson and Secretary, Department of Social Services (Social services second review) - [2020] AATA 979

Atkinson and Secretary, Department of Social Services (Social services second review) [2020] AATA 979 (27 April 2020)
Division:GENERAL DIVISION
File Number: 2017/6588
Re:Peter Atkinson
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:27 April 2020
Place:Brisbane

The decision under review is affirmed.
.......... ......................................
Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – Disability Support Pension – Cancellation – Maximum Portability Period – whether unlimited portability period applies – whether applicant severely impaired – whether applicant sought written determination prior to departure – whether applicant unable to return to Australia because of a serious accident or hospitalisation – whether portability period can be extended – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; [1988] FCA 294
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1; [2015] FCA 1123
Gidaro v Secretary, Department of of Social Security (1998) 83 FCR 139; (1998) 50 ALD 173; (1998) 154 ALR 550; (1998) 27 AAR 161; (1998) 3 SSR 53b; (24 April 1998, unreported)
Gregson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2013] AATA 213
Kristoffersen and The Secretary, Department of Social Services (Social Services Second Review) (2015) 67 AAR 482; [2015] AATA 806
Noakes and Secretary, Department of Social Services (Social Services Second Review) [2018] AATA 1457
Okungbowa and Secretary, Department of Social Services (Social Services Second Review) [2016] AATA 648
Scrivener and Secretary, Department of Social Services [2014] AATA 537
Stojanovski and Secretary, Department of Social Services (2014) 144 ALD 142; [2014] AATA 466
Secondary Materials
Guides to Social Policy Law, Social Security Guide
REASONS FOR DECISION
Senior Member P J Clauson AM
27 April 2020
INTRODUCTION

Mr Peter Atkinson (‘the Applicant’) had been in receipt of Disability Support Pension (‘DSP’) since 10 September 2002.[1]
[1] T Documents, T43, Mainframe Screen Captures, page 523.
On 12 February 2016, the Secretary, Department of Social Services (‘the Respondent’) suspended the Applicant’s DSP.[2] On 30 December 2016, the Respondent notified the Applicant that his DSP had been cancelled as he had exceeded the maximum portability period.[3] The decision to cancel his DSP was affirmed by an Authorised Review Officer of the Respondent on 19 April 2017.[4]
[2] T Documents, T31, Centrelink Notice: Suspension of DSP dated 12 February 2016, pages 301-302.
[3] T Documents, T32, Centrelink Notice: Cancellation of DSP dated 30 December 2016, page 303.
[4] T Documents, T39, ARO Decision and Notes dated 19 April 2017, pages 505-512.
On 16 May 2017, the Applicant applied for a review of the decision by the Social Services & Child Support Division of this Tribunal, which affirmed the original decision once more.[5] On 7 November 2017, the Applicant applied to the General Division of this Tribunal.[6]
[5] T Documents, T2, Decision of the SSCSD dated 11 October 2017, pages 2-11.
[6] T Documents, T1, Application for Second Review of Decision dated 7 November 2017, page 1.
A Hearing was held for this application on 29 August 2018. The Applicant attended the Hearing by telephone and was supported by Ms Vanessa Smith from Disability Advocacy NSW.
BACKGROUND
The Applicant was diagnosed with mild spastic congenital paraplegia (sometimes noted as familial ataxia paraplegia) in 1992.[7] The medical reports throughout the years have noted that the Applicant’s condition is genetic, degenerative, and gradual in onset. The Applicant’s DSP claim was initially rejected on the basis that he was able to work for more than 30 hours per week. However, following a recommendation that the Applicant be rated 20 points under Table 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘the Impairment Determination’), the Applicant was granted DSP on 10 September 2002.
[7] T Documents T5, Report: Dr Eather dated 11 February 1992, page 119; T6, Report: Dr Eather dated 13 February 1992, page 120.
The Applicant’s eligibility to receive DSP was reviewed in December 2003,[8] and again in January 2009, subsequent to reforms of the relevant social security legislation.[9] A Job Capacity Assessor (‘JCA’) conducted a file assessment on 3 March 2009 as part of the review, and concluded that the Applicant’s impairment was fully diagnosed, treated and stabilised, and warranted an Impairment Rating of 20 under Table 4 of the Impairment Determination.[10] The JCA relied upon the Applicant’s “demonstrable loss of strength, mobility, stability, balance and cordination [sic] to cause major interference with walking, squatting.” The JCA further noted that the functional restrictions resulting from the impairment included “problems with mobility, difficulty walking, reduced bending and lifting, pain and weakness and stiffness in both legs and lower back pain.”
[8] T Documents, T20, Medical Review – DSP: Applicant & Dr Ridley dated 1 December 2003, pages 226-241.
[9] T Documents, T21, DSP Medical Review: Applicant dated 8 January 2009, pages 242-247.
[10] T Documents, T23, JCA Report dated 3 March 2009, page 257.
On 19 September 2011, the Applicant underwent an Employment Services Assessment (‘ESA’) which reiterated that the Applicant’s paraplegia was fully diagnosed, treated and stabilised, and noted that the Applicant also had bilateral medial and lateral epicondylitis, which was considered fully diagnosed but would somewhat improve within 3-24 months and therefore was not a permanent condition.[11] The ESA determined that the Applicant had a Baseline Work Capacity of 8+ hours per week, with his capacity for work within 2 years with intervention also assessed at 8+ hours per week.
[11] T Documents, T26, ESA Report dated 20 September 2011, pages 270-273.
A further ESA was conducted on 12 May 2015, which noted the Applicant’s paraplegia to be a permanent condition, and noted that the Applicant had bulging discs of the lumbar spine, which was also reported as a permanent condition.[12] The ESA concluded that the Applicant had the same baseline and future work capacity as provided by the previous ESA conducted in 2011.
[12] T Documents, T30, ESA Report dated 12 May 2015, pages 297-300.
On 14 January 2016, the Applicant informed the Respondent that he intended to travel to the USA on 15 January 2016 and would return to Australia on 11 February 2016.[13] The Applicant subsequently departed Australia on 15 January 2016.
[13] T Documents, T43, Mainframe Screen Captures, page 529.
On 12 February 2016, the Respondent determined that the Applicant was still overseas, and on that basis, decided to suspend his DSP.[14] On 30 December 2016, the Respondent notified the Applicant that his DSP had been cancelled, as he was still overseas.[15]
[14] T Documents, T31, Centrelink Notice: Suspension of DSP dated 12 February 2016, pages 301-302.
[15] T Documents, T32, Centrelink Notice: Cancellation of DSP dated 30 December 2016, pages 303-304.
The Applicant returned to Australia on 30 January 2017, and on 3 February 2017 contacted the Respondent to appeal the decision.[16] Following this, a further JCA was scheduled in order to retrospectively assess whether the Applicant could be deemed to have been ‘severely disabled’ upon his departure.[17] The Applicant was assessed on 11 April 2017, and the JCA reported that his paraplegia was fully diagnosed, treated and stabilised, and also assessed conditions of subarachnoid haemorrhage and his spinal condition as being fully diagnosed, but not treated or stabilised.
[16] T Documents, T44, Centrelink Contact Notes, page 538.
[17] T Documents, T39, ARO Decision and Notes, page 510.
The JCA considered that the Applicant’s paraplegia warranted a rating of 10 points under Table 3 of the Impairment Determination. In coming to this decision the JCA noted the Applicant’s ability to use public transport and to drive to Centrelink appointments, as well as the fact that he had travelled around the USA unassisted for 12 months.[18] Following the assessment, the JCA amended the Applicant’s Baseline Work Capacity and Work Capacity with Intervention as being 15-22 hours per week.
[18] T Documents, T40, JCA Report dated 20 April 2017, page 513-519.
The Tribunal notes that the Applicant lodged a new application for DSP on 20 February 2017.[19]
[19] T Documents, T34. Claim for DSP dated 20 February 2017, pages 306-341.
ISSUES
The issue for the Tribunal to determine is whether the Applicant was qualified to continue receiving DSP at the date of cancellation, being 30 December 2016. In coming to a conclusion, the Tribunal must consider:
(a)Did the Applicant qualify for an unlimited Maximum Portability Period under the Act; and if not –
(b)Was the Applicant absent from Australia for not more than a total of 28 days; and, if not –
(c)Could the Portability Period be extended; and if not –
(d)Could the Maximum Portability Period be extended under an applicable International Social Security Agreement.
LEGISLATIVE FRAMEWORK
Decisions of the Federal Court of Australia confirm that the Tribunal’s jurisdiction in relation to the cancellation of a benefit is limited to the Applicant’s circumstances at the time of cancellation, and “[a]ny entitlement of the Applicant to a pension or benefit at a subsequent time must be the subject of a further claim.”[20]
[20] Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at [12]; see also Guide to Social Policy Law, 7.1.2.10.
Social Security recipients are entitled to receive their pension or benefit whilst overseas for a period prescribed by the Act, being the maximum portability period. Once a social security recipient’s period of absence from Australia exceeds the maximum portability period, they are no longer qualified to receive the benefit.[21]
[21] Social Security Act 1991 (Cth), section 1215.
Section 1217 of the Act defines the various portability periods and prescribes the maximum portability periods applicable to each social security payment payable to certain classes of persons.
For Australian residents receiving the DSP generally, the maximum portability period for any temporary absence, except an absence to seek medical treatment, to attend to an acute family crisis or for a humanitarian purpose is a total of 28 days within the preceding 12 months, ignoring days on which the person was not receiving DSP.[22] For severely impaired disability support pensioners and terminally ill overseas disability support pensioners, an unlimited maximum portability period applies for any absence from Australia.[23]
[22] Social Security Act 1991 (Cth), section 1217, Item 2.
[23] Social Security Act 1991 (Cth), section 1217, Item 2A; 3.
Subsection 1218AAA(1) elucidates the criteria to qualify as a severely impaired disability support pensioner, and requires that all of the following qualifying circumstances exist before the Secretary is empowered to make a written determination allowing an unlimited maximum portability period:
(a)the person is receiving disability support pension;
(b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
The Guide to Social Policy Law (‘the Guide’) clarifies that a DSP recipient will be prevented from performing any work as required by paragraph 1218AAA(1)(d) of the Act if, because of their impairment, they are deemed unlikely to have capacity to undertake work in the open employment market in the next 5 years, even with interventions.[24]
[24] Social Policy Guide 7.1.2.10.
Critically, an application for a written determination under subsection 1218AAA(1) must be made while the Applicant is still in Australia, and DSP recipients must undertake a portability assessment by a Job Capacity Assessor to determine whether they are severely impaired prior to their departure from Australia.[25]
[25] See Noakes and Secretary, Department of Social Services [2018] AAT 1457; Social Policy Guide 7.1.2.10.
Additionally, subsection 1218AAA(2) prohibits the Secretary from making a written determination under subsection 1218AAA(1) if the person is outside of Australia when they apply for a written determination unless the Secretary is satisfied that:
(a)the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b)the person’s portability period for disability support pension had not ended at the time the event occurred.
Subsection 1218AB(1) of the Act allows the Secretary to extend a disability support pensioner’s portability period for DSP by a written determination, if all of the following circumstances are met:
(a)the person is severely disabled…;
(b)the person is receiving disability support pension;
(c)the person is wholly or substantially dependent on a family member of the person…;
(d)the Secretary is satisfied that the person will be living with the family member of the person throughout the period of absence;
(e)the family member of the person is engaged in employment in Australia for an employer immediately before the start of the period of absence;
(f)the Secretary is satisfied that the family member of the person will be engaged in employment outside Australia for that employer throughout the period of absence.
Subsection 1218C(1) of the Act further allows the Secretary to extend a person’s portability period for any social security benefit or payment, if they are satisfied that the person is unable to return to Australia because of any of the following events:
(a)a serious accident involving the person or a family member of the person;
(b)a serious illness of the person or a family member of the person;
(c)the hospitalisation of the person or a family member of the person;
(d)the death of a family member of the person;
(e)the person’s involvement in custody proceedings in the country in which the person is located;
(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g)robbery or serious crime committed against the person or a family member of the person;
(h)a natural disaster in the country in which the person is located;
(i)political or social unrest in the country in which the person is located;
(j)Industrial action in the country in which the person is located;
(k)a war in the country in which the person is located.
Section 80 of the Administration Act provides, relevantly, that the Secretary is to determine that a social security payment should be cancelled or suspended if that payment is being, or has been paid to a person who is not, or was not qualified for the payment or to whom the payment is not or was not payable.
The provisions of an applicable international social security agreement override any provisions of the Act or Administration Act,[26] and therefore the maximum portability period prescribed under the Act will not apply where an international agreement provides for otherwise.
[26] Social Security (International Agreements) Act 1999 (Cth), section 6(1).
Schedule 13 of the Social Security (International Agreements) Act1999 (Cth) (“the Agreements Act”) incorporates the Agreement between the Government of Australia and the Government of the United States of America on Social Security (‘the US Agreement’). Terms that are not explicitly defined in the US Agreement bear the meaning given to them under the Act and the Administration Act.[27]
CONSIDERATION
Did the Applicant qualify for an unlimited maximum portability period?
Was the Applicant ‘severely impaired’ at the time of his departure?
Did the Applicant request a written determination under s 1218AAA prior to his departure?
What was his length of absence from Australia?
[27] Social Security (International Agreements) Act 1999 (Cth), Schedule 13 – United Statements of America, part 1, article 1, section 2.
Could his portability period have been extended by the Secretary?
Was there an applicable International Social Security Agreement in place which would have allowed the prescribed Maximum Portability Period to have been overridden?
Section 1215 of the Act contains the general principle governing this aspect and provides:
“If a person is absent from Australia, their Social Security payments are not payable once the absence from Australia exceeds the maximum portability period of the payment.”
Section 1217 sets the maximum portability period for DSP at 28 days unless the person is a severely impaired disability support pensioner pursuant to section 1218AAA or is terminally ill pursuant to section 1218AA, overseas and a disability support pensioner. If either of these circumstances prevail, then the person has unlimited portability. The Applicant in this matter confirmed that he left Australia on 15 January 2016 and returned on 30 January 2017. The Applicant was not terminally ill at the relevant period so it was therefore appropriate to consider his situation under subsection 1218AAA(1) as to whether he, as he asserts, was severely impaired because of his disability and should be entitled to have enjoyed an unlimited maximum portability period.
The Tribunal accepts that the Applicant was away from Australia for longer than the statutory portability period of 28 days as confirmed by the Applicant.
The Applicant, at the relevant period, did not have an unlimited maximum portability period as defined in subsection 1218AAA(1) of the Act, namely, he had not sought, nor had he received, a determination from the Respondent affirming that fact.
It is also necessary under this section of the Act to satisfy all the qualifying circumstances outlined therein from paragraphs 1218AAA(1)(a) to (d) before the Respondent may make a determination regarding an Applicant’s request for unlimited portability. In the Applicant’s situation, he was required, while still in Australia, to ensure:
(a)That he was receiving Disability Support Pension;
(b)That the Respondent was satisfied that his impairment was a severe impairment within the meaning of subsection 94(3B);
(c)That the Respondent was satisfied that the Applicant would have that severe impairment for at least the next five years; and
(d)That the Respondent was satisfied that, if the Applicant were in Australia, his severe impairment would have prevented him from performing any work independently of a program of support as defined by subsection 94(4) of the Act within the next five years.
The Applicant has also not been able to satisfy the requirements of the final point in paragraph (d) above as required by subsection 94(4) of the Act which states:
“(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)    is unlikely to need a program of support; or
(b)    is likely to need a program of support provided occasionally, or
(c)    is likely to need a program of support that is not ongoing.”

The Applicant was in fact, prior to leaving Australia for the USA, working at the Coffs Harbour Racing Club doing light duties in hospitality. He agreed in his evidence to the Tribunal that he had in fact worked for 56 hours at the Coffs Harbour Racing Club during and after the Pink Silks Carnival. His duties included washing and polishing cutlery, and wine glasses, doing a little reception work while the girls on reception took breaks and occasionally driving the club’s courtesy bus ferrying patrons to and from the venue. He stated that these were all jobs that involved sitting and so he was capable of doing them as part of his duties. He also checked the age and identity of incoming patrons and ensured that they signed the visitors book if necessary.[28]
[28] Transcript, pages 18 and 19.
The Applicant also confirmed his evidence to the AAT1 Hearing that, in general, apart from the Pink Silks Carnival, he would work eight hours but not more than 30 hours per week at the club when such work was available.
It is clear to the Tribunal that his evidence is such that paragraph 1218AAA(1)(d) could not be satisfied within the meaning of subsection 94(4) as it applies to this section. In other words, the Applicant’s impairment would not have been so severe as to prevent the Applicant from doing any work in the general workforce even with intervention. The single difficulty confronting the Applicant to support his claim for unlimited portability is the lack of a written determination by the Respondent pursuant to section 1218AAA of the Act that he has unlimited portability because of severe impairment. The Applicant would have been required to:
(a)Seek a written determination for extended or indefinite portability from the Respondent;
(b)Such application should, in a case such as the Applicant’s, be made whilst the Applicant is still in Australia; and
(c)Be required to undergo a portability assessment before departing the country.
Also, if the recipient of DSP is outside of Australia when a decision is made to seek an indefinite portability, they would be required to return to Australia for the purpose of undergoing a portability assessment under these provisions.[29]
[29] Social Policy guide 7.1.2.10, General Rules of Portability.
The Applicant did not seek such a determination and could not satisfy the “out of Australia exemption” (the Tribunal’s words) as, when he was out of Australia, he would not have been unable to return because he had a serious accident, or been hospitalised prior to the end of his statutory portability period.
The Tribunal also notes that, where there has not been any written determination by the Respondent that the Applicant has unlimited portability because he has a severe impairment under section 1218AAA, the authorities state that the Tribunal in such circumstances, cannot review that requirement.[30]
[30] Re Gregson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 213 per SM Levy.
The Applicant in this matter is attempting to assert that, notwithstanding that he did not seek any extension to his portability in the appropriate manner as outlined, his circumstances are such that he should, after an absence of almost 12 months from Australia and following his return, effectively be entitled to a request retrospectively that such a determination now be made in his favour under section 1218AAA of the Act. With respect, this Tribunal does not consider that this option is open to the Applicant.[31]
[31] Kristoffersen and Secretary, Department of Social Services (Social Services Second Review) (2015) 67 AAR 482; [2015] AATA 806 at [17] to [19].
In the view of the Tribunal, the Applicant, even if he had sought a determination from the Respondent in the required manner, would have been unable to satisfy the requirement of section 1218AAA of the Act as the Applicant’s impairment must be a severe impairment as defined in subsection 94(3B) of the Act. It is defined as an impairment that, under the Impairment Tables, attracts a rating of 20 points or more, of which at least 20 points are established under a single table. Thus, even if a person suffers from impairments, it is necessary to have at least one of those impairments to have been allocated 20 or more points from one of the Impairment Tables. This principle has been reinforced by the decision in Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [27] to [28][32] where it was observed by SM Kenny that a DSP recipient may suffer from a range of conditions that limit their ability to work, however, that did not entitle them to have DSP paid to them indefinitely during their absence from Australia. This Tribunal, based on the available evidence before it and that of the Applicant at the hearing, considers that the Applicant did not suffer from a severe impairment at the time he departed Australia. The Tribunal also considered the situation as to whether, pursuant to subsection 1218AAA(2) of the Act, the Applicant, during his absence from Australia, was unable to return to Australia because he had been involved in a serious accident involving himself, or that he had been hospitalised and his portability period for the DSP had not ended at the time any of these events had occurred, and further, that the Respondent had made a determination that whilst out of Australia, the Applicant’s maximum portability period for DSP had been extended for an unlimited period.
[32] Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [27] to [28] per SM Kenny.
The evidence before the Tribunal supplied by the Applicant clearly indicates that this section is not applicable to his situation whilst in the USA. He told the Tribunal that he and his friends lived in, and drove about in Texas in, their campervan, they stayed with a friend called Clarke at his home in Houston, visited Dallas and some other cities and went sightseeing generally.[33] The Applicant made no mention of being in a situation that would have qualified him pursuant to subsection 1218(2) of the Act to seek such a determination.
[33] Transcript, pages 20-21.
The Tribunal has also considered whether the Applicant was able to have his maximum portability period extended by the Respondent pursuant to the conditions set out in subsection 1218AB(1) of the Act. The evidence before the Tribunal is such that, given the Applicant was not at the relevant time “severely disabled”, he was unable to satisfy the fundamental requirement of this section to seek a written determination to extend his portability for support pension.
The Applicant was out of Australia from 15 January 2016 and returned on 30 January 2017. He also confirmed the accuracy of this to the Tribunal by way of his evidence during the hearing. The Tribunal is required to consider whether, during this period, the Applicant could have been qualified under section 1218C of the Act to seek, in writing, a declaration from the Respondent that his portability period for the payment of DSP could have been extended. The Tribunal notes that it has no evidence before it that any of the events set out in that section allowing such an extension to be declared did occur. The Tribunal accepts the Applicant’s evidence to the AAT1 that they in fact did not. The section does not therefore apply here.
The Tribunal has also to consider whether, in the Applicant’s case, an applicable international Social Security Agreement overrode the prescribed maximum portability period. Where such an Agreement is in place, the portability of a social security payment is governed by the provisions of Part 4.2 of the Act. These laws do not apply where an International Agreement or Social Security Agreement is applicable (Section 1211 of the Act and section 6 of the Agreements Act.
An Agreement does exist between Australia and the USA contained in Schedule 13 to the Agreements Act, namely, the US Agreement. Any term not defined in the US Agreement takes the same meaning as it does under the Act and the Administration Act.
It is also noted that the AAT1 decision determined that the US Agreement had no application to the Applicant’s circumstances.
The authorities have determined that the US Agreement applies only to Australian citizens who are resident in the USA. It does not apply to Australian visitors to the USA.[34]
[34] Stojanovski and Secretary, Department of Social Services (2014) 144 ALD 142; [2014] AATA 466 at [7].
The principle was also reconfirmed by SM Cotter in Okungbowa and Secretary, Department of Social Services (Social Services Second Review) [2016] AATA 648 at [22]:
“However, it is important to note that the US Agreement restricts payments to Australians who are residents of the USA and not persons who are simply visitors.”[35]
[35] Okungbowa and Secretary, Department of Social Services (Social Services Second Review) [2016] AATA 648 at [22].
The Applicant’s evidence to both the AAT1 and this Tribunal was that he was visiting the USA and was not a resident of the USA whilst he was there.
Thus, the US Agreement which provides for the portability of Social Security payments to an Australian citizen resident overseas is not applicable in the Applicant’s circumstances. Further, the US Agreement applies to the circumstances where a DSP recipient who is resident in the USA is “severely disabled”.[36]
[36] The US Agreement, Article 2(1)(b)(i)(B).
The term “severely disabled” is defined in subsection 23(4B) of the Act and provides as follows:
“23(4B) For the purposes of this Act, a person is severely disabled if:
(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i)to work for at least the next 2 years; and
(ii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind.”
The Guide to Social Security Law provides a meaning for the term “totally unable to work” in Instruction 1.1.S.110 severely disabled (DSP):
“For the purposes of DSP, a recipient is severely disabled if the recipient:
·has a physical, psychiatric or intellectual impairment, or 2 or all of these impairments, which make the recipient:
· totally unable to work for at least the next 2 years, and
· unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program, or
·is permanently blind (1.1.P.210).”
A recipient is accepted as being severely disabled if their impairment prevents them from:
·doing any work for 8 hours a week or more for the next 2 years, and
·benefitting from training, education or rehabilitation to the extent of being able to work for at least 8 hours a week.”
Given that this Tribunal does not consider that, at the relevant period, the Applicant was in any event “severely disabled”, it stands to reason that he would not be able to take advantage of the US Agreement as it applies to DSP recipients.
The Tribunal has also considered whether the Applicant’s DSP should have been cancelled as at 30 December 2016 and at no other time.
The Applicant has argued that at the time of cancellation he was “severely disabled” as he had received 20 points under the old impairment rules in 2002 and that his DSP payment should have continued to be suspended and not cancelled at 30 December 2016. The Tribunal is, however, confronted with the assessment conducted by the JCA and reported on 20 April 2017 following the Applicant’s return to Australia[37] wherein he was assessed as having an overall Impairment Rating under Table 3 of 10 points only. Further, the JCA assessed the Applicant as having a baseline and future work capacity within two years with intervention of 15 to 22 hours per week[38] and noted the fact that he had worked casually between 2001 to January 2016 in the hospitality industry at the Coffs Harbour Racing Club and Club Coffs and at other venues prior to that for up to 56 hours per fortnight. It is also noted his final period of work was a seven hour shift on 12 January 2016, shortly before his departure from Australia for overseas.[39] This Tribunal also notes that he advised the AAT1 hearing that he had taken every opportunity to work before departing for between eight hours and 30 hours per week.
[37] T Documents, T40, page 517.
[38] Ibid.
[39] Exhibit 2, Annexure A – EANS.
This material is the best and only indication to this Tribunal of the Applicant’s state of impairment both at the time he embarked upon his overseas trip and whilst he was thus engaged, and also upon his return. It is the Tribunal’s view that it serves to reinforce the Respondent’s contention that the Applicant was not “severely disabled” at the relevant period. The Tribunal considers that at the relevant period, the Applicant’s impairments did not attract 20 points or more under the Impairment Tables, of which 20 points or more were assigned under a single Impairment Table and that he did not therefore have a continuing inability to work and thus, could not satisfy the requirements of paragraphs 94(1)(b) or (c) of the Act.
The Applicant, in support of his claim that he was seriously impaired at the relevant time, lodged with the Tribunal additional submissions and medical reports and supporting statements (some of which were before the Tribunal at Hearing). The first bundle of documents (Exhibit 6) was lodged on 18 June 2019. The Respondent’s response to that bundle was lodged on 12 July 2019 (Exhibit 7). The Applicant lodged further material and submissions in reply on 15 July 2019 (Exhibit 8) and 31 July 2019 (Exhibit 9). The Applicant, prior to the hearing, lodged material on 9 August 2018, in addition to the material contained in the T documents. This material was in addition to the material provided to the Tribunal by the Applicant in support of his contention that he was severely disabled at the relevant period and should not have had his DSP cancelled. It is to be noted that the Respondent did not object to the filing of these submissions and was afforded the opportunity to lodge responses to the Applicant’s later material.
The Tribunal considered that, in the interests of providing natural justice and procedural fairness to the parties, this was an appropriate allowance to make.
The Tribunal has considered the material lodged in the T documents and the material contained in Exhibits 6, 7, 8 and 9 in coming to its decision in this matter. The Tribunal has also considered the Applicant’s post-hearing submissions in relation to the additional medical and other documentation he has provided. The Tribunal has also given consideration to the Respondent’s further submissions as they relate to the Applicant’s later material and submissions.
The Tribunal, for completeness, sets out below the subject material relied upon by the Applicant and discussed in the foregoing paragraphs:
·     An Assessment Referral Information Sheet dated 29 October 2002;
·     Disability Support Pension (DSP) medical report dated 1 December 2003;
·     Job Capacity (JCA) report dated 3 March 2009;
·     Letter from Dr Morrissey (Urologist) dated 11 May 2009;
·     Letter from the Department of Human Services (the Department) to the Applicant dated 16 May 2016 regarding suspension of his Mobility Allowance;
·     Letter from the Department to the Applicant dated 15 August 2016 regarding cancellation of his Mobility Allowance;
·     Letter from the Department to the Applicant dated 30 December 2016 cancelling the Applicant’s DSP;
·     Statement of Ms Benton dated 29 March 2017;[40]
·     Copy of File Notes made by Departmental Officer in relation to telephone discussions with the Applicant on 11 April 2017;
·     Letter from the Department to the Applicant dated 13 June 2017 regarding the decision on the Applicant’s Freedom of Information Request;
·     Letter from the Department to the Applicant dated 24 July 2017 regarding the decision on the Applicant’s Freedom of Information Request; and
·     Note from Dr Peterson to Dr Scott dated 18 July 2018.
[40] T Documents, T37.
The Tribunal accepts that the Assessment Referral Information Sheet dated 29 October 2002 indicates that the Assessor considered the Applicant’s conditions of familial ataxia paraplegia and osteoarthritis were permanent for the purposes of his claim in 2002. It is noted that the Respondent does accept that these conditions were, as at 29 October 2002 and at the date of cancellation, fully diagnosed, fully treated and fully stabilised. However, the Tribunal has decided that, as at the date of cancellation of the Applicant’s DSP, he did not satisfy section 1218AAA of the Act as he did not have a severe impairment of 20 points or more under the Impairment Tables of which 20 points or more are assigned under a single Table.[41]
[41] Subsection 94(3B) of the Act.
The JCA Report dated 3 March 2009 relates to an assessment at that time of the Applicant’s lower limb condition. It attributed 20 points to this condition alone at that time. The Tribunal has to consider the impairment as at the date of cancellation and at no other time. The Impairment Tables were reviewed by the then Federal Government in 2011 in order to make sure that they maintained currency with advances in contemporary medicine and rehabilitation regimes. The new (current) Impairment Tables came into force on 1 January 2012. Given that the Applicant’s DSP was cancelled well after that date, this Tribunal is obliged to consider whether the Applicant suffered a severe impairment using the descriptors set out for that purpose under the current determination. The assessment of the JCA of the Applicant’s impairment can therefore bear no relevance to the Applicant’s disability as at the date of cancellation, namely 30 December 2016. The Tribunal considers that this material is not suitable for consideration in coming to its decision.
Likewise, the letter from Dr Morrissey to Dr Ridley dated 11 May 2009 is brief and advises that a biopsy was performed upon the Applicant, mentions no specific medical condition and simply advises Dr Ridley that any results will be notified to him. The document is of no value in revealing if, at the relevant period under consideration, the Applicant suffered a serious illness.
The Tribunal concurs with the Respondent’s contention that the telephone notes of the Applicant’s discussion with the Department regarding the JCA’s assessment on 11 April 2017 only serves to confirm the Applicant’s lack of satisfaction with the JCA’s findings from that assessment. It is of no substantive value in assessing the Applicant’s condition as at the date of the DSP cancellation.
The note from Mr Bruce Peterson, Clinical Psychologist, to Dr Bruce Scott, dated 18 July 2018 is simply a request for “authorisation of four more sessions of CBT” (Cognitive Behavioural Therapy) (my words). This relates to a condition which was not apparently existent at the date of cancellation and can have no relevance to the deliberations of this Tribunal.
The Tribunal considers that this particular material falls directly into that category of material referred to in Gallacher v Secretary, Department of Social Services at [25] - [29][42] as coming into existence well past the relevant period and bares no relevance to the Applicant’s condition at that time.
[42] Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25] - [29].
The Tribunal notes that the DSP medical report dated 1 December 2003,[43] was included with the T Documents. The copy of the DSP letter of cancellation dated 30 December 2016,[44] and the Statement of Ms Benton dated 29 March 2017,[45] had also been initially filed with the T documents by the Respondent.
[43] T Documents, T20.
[44] T Documents, T31.
[45] T Documents, T37.

This Tribunal has considered these materials and finds that neither medical report, nor the letter of cancellation, assist in this matter as the former refers to the medical conditions of the Applicant at a period of time not referable to the relevant period for the purposes of this review and the copy of the cancellation letter is of no relevance to the task of ascertaining the impairments of the Applicant as at the relevant period. A copy of Ms Benton’s letter simply outlines her view of the Applicant’s condition sometime after the relevant period.
The Tribunal has noted the Respondent’s comments in relation to the following:
(a)Letter from the Department to the Applicant regarding suspension of his Mobility Allowance dated 16 May 2016;
(b)Letter from the Department to the Applicant regarding cancellation of his Mobility Allowance dated 15 August 2016;
(c)Letter from the Department to the Applicant dated 13 June 2017 regarding his FOI request; and
(d)Letter from the Department to the Applicant dated 24 July 2017 regarding his FOI request;
and agrees with the Respondent that this material is of no relevance to the issues currently before the Tribunal.
The Applicant filed further material with the Tribunal which was provided to the Respondent and the Respondent provided further submissions in response to this material.
The Applicant’s further material consisted of:
(a)An undated letter from Dr Woo (Geneticist), a copy of which was later lodged with the Tribunal bearing a date of 22 July 2019;
(b)Letter from Dr Vatta (Geneticist) dated 6 April 2018;
(c)Patient Insights Network Information Leaflet;
(d)Letter from Dr Scott (GP) dated 3 December 2018 and Patient Health Summary;
(e)Letter from Dr Taneja (Neurologist) dated 28 August 2018;
(f)Letter from Ms Evans (Physiotherapist) and Functional Assessment Report dated 21 August 2018;
(g)Job Capacity Assessment (JCA) Report dated 3 March 2009;
(h)An Assessment Referral Information Sheet dated 29 October 2002;
(i)Letter from Mr Peterson (Clinical Psychologist) dated 15 August 2018; and
(j)Undated letter from Ms Marsden.
The Tribunal is of the view that the letters from Dr Woo and Dr Vatta confirm that the Applicant has been diagnosed with hereditary spastic paraplegia. It is noted that the Respondent accepts that the paraplegic condition was fully diagnosed, fully treated and fully stabilised as at the date of cancellation on 30 December 2016.
The letter from Mr Peterson (Clinical Psychologist) dated 15 August 2018 confirming a diagnosis of severe depression is dated some 20 months after the date of the Applicant’s DSP cancellation and consequently it is the opinion of this Tribunal that the material therein is not referable to the date of cancellation and is therefore not relevant to this Tribunal’s decision.
The Tribunal relies upon the decision in Gallacher. Also, it is noted that there is no material corroborative of the fact that the Applicant suffered from depression as at the date of the cancellation.
This Tribunal has also considered the letter from Dr Scott (General Practitioner) dated 3 September 2018 which outlines that the paraplegia condition causes a severe functional impact. The Tribunal notes that the letter is also dated some 21 months after the date of cancellation. The Tribunal notes that the Respondent contends that this report is not relevant to the Tribunal’s decision as per Gallacher. It is noted that the report refers to the Applicant’s functioning having “deteriorated significantly especially involving his mobility” since January 2017. The Tribunal considers that given the Applicant’s significant deterioration as outlined, the assessment of a severe functional impact as at 3 September 2018 should not be accepted as reliable evidence of the Applicant’s functioning as at the date of the cancellation. The Tribunal therefore accepts the Respondent’s contention that this report cannot be relied upon in relation to the Applicant’s conditioning as at the date of cancellation and is therefore not referable to it.
The Applicant also relied upon a letter from Dr Taneja (Neurologist) dated 28 August 2018, dated some 20 months after the date of cancellation. It is the view of this Tribunal that the report relates to the condition of the Applicant as at 28 August 2018 and can have no relevance to the condition of the Applicant as at the relevant date. The Tribunal considers that Dr Taneja would be unable to ascertain the Applicant’s level of functioning as at the date of cancellation and thus the report of 28 August 2018 can only be referable to that particular time.
In relation to the letter from Ms Evans (the Applicant’s Physiotherapist), dated 21 August 2018, which refers to the level of functioning of the Applicant, the Tribunal considers that that report relates to the functioning of the Applicant only as at that date. The Tribunal considers that the report offers no assistance to the Tribunal to describe the functioning of the Applicant as at the date of cancellation and thus cannot be relied upon by the Tribunal in the consideration of the issues in this matter.
The Tribunal further notes that the copy of the JCA Report dated 3 March 2009 and the Assessment Referral Information Sheet dated 29 October 2002 have already been discussed in this Decision and the Tribunal reiterates its view of those documents.
The Tribunal agrees with the Respondent’s contentions in relation to the Patient Insights Network Information Leaflet and the undated letter from Ms Marsden in that the information leaflet is not relevant to the issues in consideration before the Tribunal and that the letter from Ms Marsden does not support a finding that the Applicant had a severe impairment as at 30 December 2016.
The Tribunal therefore considers that none of the additional evidence presented by the Applicant in support of his contention that he was severely disabled at the time of cancellation is able to support that contention.
Conclusion
The Applicant had his DSP suspended on 12 February 2016 after his portability period of 28 days had expired.
The decision to suspend his DSP was within the discretion of the decision-maker who chose not to cancel the Applicant’s DSP at that time. Section 80 of the Administration Act provides no statutory guidance as to the course of action to be preferred, that is suspension or cancellation.
This discretion has been noted in the Federal Court by Burchett J. in the matter of Gidaro v Secretary, Department of Social Security (24 April 1998, unreported) at 400. His Honour, in assessing which course was more applicable, observed:
“I think suspension is intended to be a lesser thing than cancellation, and that the Secretary’s discretion extends to suspension for an appropriate period.”[46]
[46] Gidaro v Secretary, Department of Social Security (1998) 83 FCR 139; (1998) 50 ALD 173; (1998) 154 ALR 550; (1998) 27 AAR 161; (1998) 3 SSR 53b; (24 April 1998, unreported).
The Applicant’s DSP was not initially cancelled, but suspended on 12 February 2016 and cancelled on 30 December 2016, a significant period later following his non-return to Australia.
This cancellation thus left the Applicant in a position where, after his return, he was obliged to re-apply for DSP under the terms of the 2011 Ministerial Determination which had superseded the requirements for DSP when the Applicant was initially granted it in 2002.
The Tribunal notes the Applicant’s contention to the AAT1 hearing and to this Tribunal that he had always intended to be away from Australia for a period longer than the 28 day portability allowance period and that he had advised the Respondent of this in December 2015 when seeking information about any effect his absence would have upon his continuing eligibility to receive DSP. The Tribunal also notes with some curiosity that the relevant contact notes provided by the Respondent in the T Documents only recorded the conversation with the Applicant held on 14 January 2016 and that on that occasion he advised he would be returning on 11 February 2016 notwithstanding it was always his intention to be absent from Australia for a significant longer period.[47]
[47] T Documents, T44.
Unfortunately, notwithstanding the debate surrounding the Applicant’s pre-departure discussions with the Respondent, there are no circumstances in the Applicant’s situation which would allow him unlimited portability or in which a discretion could be exercised to extend his portability period. The Tribunal considers that, having looked at and considered all aspects of his matter, that the Applicant was provided a generous period of suspension up to 30 December 2016 and that, following the expiry of this time, it was appropriate for his DSP to be cancelled on that date. The decision-maker was not to know he would be returning some four weeks later and would have returned earlier if his flights had not been rescheduled by the airline. Thus, it was not unreasonable after a suspension of more than 10 months following the expiry of his allowable portability period, for the decision-maker to exercise the discretion to cancel his DSP.
The Tribunal has noted the Applicant’s frustration with the Respondent’s apparent inconsistent recording of their discussions both in December 2015 and also when discussing his new Application for DSP, especially as he had kept his records of such conversations and they seemingly had none. Unfortunately, this circumstance, as frustrating as it may be, is unable to inform the decision to be made by this Tribunal. The matter lies only upon the law as it affects his particular circumstances, as addressed elsewhere in these Reasons. Frustrating as these communication issues may be, they are not within the purview of this Tribunal’s jurisdiction.
DECISION
The decision under review is affirmed.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

..........................................
Associate

Dated: 27 April 2020

Date of hearing: 29 April 2018

Applicant: By telephone

Advocate for the Applicant: Ms Vanessa Smith
Disability Advocacy NSW

Solicitor for the Respondent: Mr Jake Kyranis
Sparke Helmore Lawyers

Date of hearing:	29 April 2018
Applicant:	By telephone
Advocate for the Applicant:	Ms Vanessa Smith Disability Advocacy NSW
Solicitor for the Respondent:	Mr Jake Kyranis Sparke Helmore Lawyers