Atzil and Secretary, Department of Social Services (Social services second review)
[2016] AATA 1055
•21 December 2016
Atzil and Secretary, Department of Social Services (Social services second review) [2016] AATA 1055 (21 December 2016)
Division
GENERAL DIVISION
File Number
2015/5841
Re
Reuven Atzil
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Andrew Cameron, Member
Date 21 December 2016
Place Melbourne The Tribunal affirms the decision under review.
[sgd].................................................................
Mr Andrew Cameron, Member
SOCIAL SECURITY – disability support pension – qualification – whether resident at time of first having continuing inability to work – residency acquired after that time – decision affirmed
LEGISLATION
Social Security Act 1991 ss 7, 94, 1173
Social Security (Administration) Act 1999 Sch 2 and cl 4
Migration Regulations 1994 Sch 1 and cl 1124B
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011CASES
Ljubovic v Secretary, Department of Social Services [2015] AATA 1025
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
REASONS FOR DECISION
Mr Andrew Cameron, Member
21 December 2016
INTRODUCTION
Mr Reuven Atzil seeks a review of a decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal made on 24 September 2015. The SSCSD affirmed the decision of an Authorised Review Officer (ARO) made on 21 July 2015 to reject Mr Atzil’s claim for the disability support pension (DSP).
The issue in dispute in this hearing was whether Mr Atzil qualified for the DSP as at 23 April 2015 or within 13 weeks from that date (clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth)).
QUALIFICATION FOR DSP
Section 94(1) of the Social Security Act 1991 (Cth) (Act) sets out the qualification requirements for the DSP.
Section 94 of the Act provides, among other things, that:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; …
There was no dispute between the parties that the requirements of s 94(1)(a) – (c) of the Act were established.
In particular, in the Secretary’s statement of facts and contentions at paragraphs [19] – [23] it was conceded that Mr Atzil:
(a)suffers from a lumbar disc prolapse with left sciatica and the condition gives rise to an impairment for the purposes of s 94(1)(a) of the Act;
(b)has an impairment rating of 20 points on Table 4 in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 for the purposes of s 94(1)(b) of the Act; and
(c)is unable to work at least 15 hours a week and s 94(1)(c) of the Act is satisfied.
The Secretary submitted that the matters for consideration by the Tribunal, were:
(a)whether Mr Atzil met the residency requirements under s 94(1)(e) of the Act; and
(b)if so, whether s 1173 of the Act (effect of periodic compensation payments on rate of person’s compensation affected payment) had the effect of reducing any DSP payable to Mr Atzil.
BACKGROUND
By way of background, the evidence before the Tribunal was that Mr Atzil:
(a)was born in Israel and first entered Australia on 18 June 2007;
(b)suffered a workplace injury on 25 March 2009 where he fell injuring his back resulting in disc prolapse and sciatica;
(c)held a number of temporary visas until 29 July 2010 when he was granted a subclass 801 visa;
(d)was granted Australian citizenship in November 2011;
(e)was paid the DSP from 14 January 2012 to 21 November 2014 until the DSP was cancelled due to periodic compensation payments;
(f)was receiving, as at 29 June 2015, periodic compensation payments of $728 per week;
(g)lodged a claim for the DSP on 23 April 2015;
(h)had his claim for the DSP refused on 29 June 2015;
(i)applied to have that decision reviewed by an ARO; and
(j)applied to the SSCSD for a review of the original decision. The SSCSD affirmed the decision to reject Mr Atzil’s DSP claim on 24 September 2015.
THE RESIDENCY REQUIREMENT
An Australian resident at the time of first satisfying s 94(1)(c)?
First, in relation to s 94(1)(e)(i) of the Act, I am of the view that Mr Atzil was not an Australian resident at the time he first satisfied the requirements of s 94(1)(c).
The construction of s 94(1)(e)(i) was considered by the Full Court of the Federal Court of Australia in Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500 (Michael) where Drummond J held at [5]:
Section 94(1)(e)(i) should therefore be read as requiring the pension applicant to be an Australian resident when the person first suffers the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the two years immediately following that date.
Kiefel and Dowsett JJ in Michael held at [27]:
We favour the construction of s 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of s 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of s 94(1)(c).
Mr Atzil, by his own evidence before the Tribunal, conceded that he could not work from the date of his workplace injury, namely 25 March 2009. In fact, Mr Atzil has not been employed since March 2009.
This was contrary to written submissions filed with the Tribunal on behalf of Mr Atzil which stated, among other things:
…8. The Applicant submits that, notwithstanding the fact that he sustained his back injury on 25 March 2009, he did not have a continuing inability to work until some time later, being in April-May 2015. (emphasis added)
The law is clear that the date on which a medical condition is said to arise will not necessarily coincide with the date on which a person first ceased to have a continuing inability to work.
In Ljubovic v Secretary, Department of Social Services [2015] AATA 1025, Senior Member Fice held at [16]:
The key to resolving this issue lies in determining from the date from which Ms Ljubovic ceased to have a continuing ability to work. I should make it clear that the date on which her medical condition was said to arise will not necessarily coincide with the date on which she first ceased to have a continuing ability to work. (emphasis added)
Professor Jeffrey V. Rosenfeld, director of Neurosurgery at The Alfred Hospital, wrote in a letter dated 30 June 2010 put before the Tribunal that:
Mr Atzil was reviewed by me in the Neurosurgery Outpatient Clinic on 13th April 2010. He had ongoing chronic back pain and severe left sided sciatica particular involving the buttock but extending down the left lower limb. This has been unremitting since the work accident on the 25th March 2009. His repeat imaging showed an ongoing large disc prolapse at L5/S1 with definite compression of the left S1 nerve root. Mr Atzil is unable to work with his current level of pain. (emphasis added)
Professor Rosenfeld wrote on 26 March 2012 that:
…He [Mr Atzil] has had unremitting pains since a work accident on 25 March 2009 in which he fell-off a ramp whilst at work and has had back pain and left sciatic ever since. I believe his chronic back pain and sciatica are work related. (emphasis added)
In light of the matters referred to in paragraphs 12, 16 and 17 above, I find that Mr Atzil had a continuing inability to work within the meaning of s 94(2) of the Act certainly no later than 13 April 2010 when Professor Rosenfeld saw Mr Atzil and, more than likely, around the time of his accident being 25 March 2009.
The question then becomes whether Mr Atzil was an Australian resident at any time prior to 13 April 2010? The answer is “no”.
Under s 7(2) of the Act, an “Australian resident” is defined as:
2An Australian resident is a person who:
(a)resides in Australia; and
(b)is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
Note: For holder and permanent visa see subsection (1).
According to Mr Atzil, he became an Australian citizen in November 2011.
Furthermore, he was not the holder of a permanent visa, being a subclass 801 visa, until 29 July 2010. See, the Migration Regulations 1994, Schedule 1, cl 1124B(4).
Mr Atzil was not the holder of a special category visa who is a protected SCV holder. A “protected SCV holder” is defined in sections 7(2A), (2B), (2C) and (2D) of the Act. The subsections of the Act require that the holder of a special category visa was residing in Australia on 26 February 2001, recommenced residing in Australia within 3 months of 26 February 2001, or a determination was made under subsection (2E) of the Act. These subsections do not apply to Mr Atzil.
Accordingly, Mr Atzil was not an Australian resident within the meaning of s 7(2) of the Act on or prior to 13 April 2010.
Ten years qualifying Australian residence, or qualifying residence exemption for a disability support pension?
Secondly, in relation to s 94(1)(e)(ii), there are two sub-issues for consideration:
(a)does Mr Atzil have 10 years qualifying Australian residence; or
(b)does he have a qualifying residence exemption for the DSP?
The term “qualifying Australian residence” is defined in s 7(5) of the Act to mean:
A person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b)the person has been an Australian resident during more than one period and:
(i)at least one of those periods is 5 years or more; and
(ii)the aggregate of those periods exceeds 10 years.
The answer to the first sub-issue is straightforward. Mr Atzil has been an Australian resident since 29 July 2010 and, on that basis, does not have a period of 10 years residence continuously or in total.
As to the second sub-issue, it is necessary to examine the definition of “qualifying residence exemption” in ss 7(6) and 7(6AA) of the Act. The sections state:
7(6)A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement, a seniors health card or a health care card if, and only if, the person:
(a)resides in Australia; and
(b)is either:
(i) a refugee; or
(ii) a former refugee.
7(6AA) A person also has a qualifying residence exemption for a social security benefit (other than a special benefit) a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card if, and only if, the person:
(a)was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(b)holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.
Section 23 of the Act defines “social security pension” to include the DSP. However, s 7(6) of the Act is not enlivened given that Mr Atzil is not a refugee or a former refugee.
DSP is not, however, included in the definition of “social security benefit”. Section 7(6AA) of the Act is not otherwise enlivened.
Accordingly, Mr Atzil does not satisfy the requirements for a qualifying residence exemption under s 7(6) or s 7(6AA) of the Act.
A dependent child of an Australian resident?
Thirdly, in relation to s 94(1)(e)(iii), given Mr Atzil’s age he could not be a dependent child and, therefore, this section is not applicable.
CONCLUSION
In light of my findings above that Mr Atzil is not entitled to the DSP, it is unnecessary for me to consider the effect, if any, of periodic compensation payments on any DSP payable to Mr Atzil under s 1173 of the Act.
By reason of the foregoing paragraphs, the decision under review should be affirmed.
35. I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of
Mr Andrew Cameron, Member[sgd]........................................................
Dated 21 December 2016
Date of hearing 27 September 2016 Applicant In person Advocate for the Respondent Ms Ailsa Bramley, Solicitor Solicitors for the Respondent Department of Human Services,
Freedom of Information & Litigation Branch
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