Burnside and Secretary, Department of Families, Community Services and Indigenous Affairs
[2006] AATA 1048
•5 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1048
ADMINISTRATIVE APPEALS TRIBUNAL № V2003/1402
GENERAL ADMINISTRATIVE DIVISION
Re: RORY BURNSIDE
Applicant
And:SECRETARY,
DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:5 December 2006
Place:Melbourne
Decision:The decision under review is affirmed.
(sgd) Miss E.A. Shanahan
Member
SOCIAL SECURITY – disability support pension – blindness and other – Australian citizen – born overseas – residency qualification period – effect of agreement between the United States of America and Australia on social security matters
Social Security Act 1991
Social Security (International Agreements) Act 1999 Schedule 13
Social Security Act, tit XVI, 42 USC (1935)
Re Murphy and Secretary, Department of Family and Community Services [2004] AATA 1248
Re Paraskeve Kiourkenidis and Secretary, Department of Family and Community Services [2005] AATA 102
REASONS FOR DECISION
5 December 2006 Miss E.A. Shanahan, Member
1. Rory Burnside was born in the United States of America (USA) on 2 May 1987. His mother, Dr D. Duncan, an Australian citizen, was studying in the USA and his father, a professional musician, is an American citizen. Rory became an Australian citizen by descent on 14 July 1988 (T6) and retains dual citizenship. Dr Duncan completed a Masters Degree and then a PhD in Epidemiology in San Francisco. During this period she also worked part time, thereby accruing the quarterly credits necessary to obtain social security coverage in the USA. Dr Duncan returned to Australia in either August or September 1997 with Rory and his two younger siblings. Mr J. Burnside, Rory’s father, has recently migrated to Australia with his wife and their two children.
2. Rory has been severely disabled as a result of major congenital defects: namely anophthalmia (born without eyes) and a stage four cleft palate and lip. His disabilities have been well-documented by medical experts and he underwent numerous surgical procedures in the USA and requires further surgery in Australia. His blindness is total and permanent. Early in his childhood his behavioural difficulties were attributed to his congenital defects; until further investigations were undertaken when Rory was approximately seven or eight years of age and a diagnosis of Asperger's syndrome was made. Asperger's syndrome is a form of autism. In April 2002 Rory developed grand mal epilepsy requiring ongoing medication which is, of itself, productive of deleterious side effects.
3. While resident in the USA, Rory’s disabilities were classified as of such severity to attract payment to his mother of funds for his benefit under the Supplemental Security Income (SSI) Scheme, a United States (US) government program. The amount of the SSI payments was based on his parent’s income and these payments were available for a period of seven years (Social Security Act, tit XVI, 42 USC (1935) (the US Act)).
4. Rory is now eighteen years old and attends the Royal Victoria Institute for the Blind (RVIB) Special School. He has displayed exceptional musical talents despite his disabilities. Because of his age, Rory is not eligible to attend the RVIB School beyond 2005 and his further education has not yet been determined.
5. The Disability Support Pension (DSP) (Blind) is payable to children who are Australian citizens upon reaching the age of sixteen. On 15 May 2003 Rory lodged a claim for DSP with Centrelink. Centrelink is the service delivery agent for the respondent. On 27 May 2003 Rory’s application for DSP was rejected as he did not have the required ten years of residency in Australia. This decision was affirmed by an Authorised Review Officer on 3 July 2003. Rory sought review of the decision by the Social Security Appeals Tribunal (SSAT). On 4 December 2003 the SSAT affirmed the decision. Rory lodged an application for review by this Tribunal on 23 December 2003.
6. The issues before the Tribunal are contained in the Applicant’s Statements of Facts and Contention. There have been two such statements; and they can be summarised as follows:
1)The SSAT failed to assess Rory’s recently developed epilepsy while resident in Australia and the side effects of his medication;
2)That Rory qualifies for DSP in accordance with Article 1 of Schedule 13 of the Social Security (International Agreements) Act1999 (the Agreement Act), by virtue of the receipt of SSI payments while resident in USA;
3)That the Agreement Act is unclear as to what is meant by a United States period of coverage and any equivalent period that may be used to establish the rights to a benefit under the laws of the United States (Article 1 of the Agreement Act); and
4)Are parents’ quarters of credit transferable to their disabled child?
The Tribunal was requested to make orders to assist in the clarification of the meaning of the terms A United States period of coverage, quarters of coverage and equivalent periods, given that Article 20 of the Agreement provides for the exchange of information and material assistance between the competent authorities and agencies of the two governments, free of charge, relating to interpretation of that agreement.
7. The application was heard before this Tribunal in July 2005. For reasons that will become apparent, it was not possible to hand down a decision at that time. This explains why references to Rory’s circumstances in 2005 are referred to in the current tense.
8. At the hearing Rory was represented by Ms D. Rasheva of counsel, instructed by Victoria Legal Aid. The respondent was represented by Ms E. King, an advocate with Centrelink. Rory and his mother gave evidence and the parties tendered the following documents:
Applicant’s Documents
Exhibit A1Statement of Dr D. Duncan taken on 30 March 2005
Exhibit A2Report of Dr S. K. Lowe dated 26 February 2005
Exhibit A3Report of Dr P. Rowe dated 10 March 2005
Exhibit A4Applicant’s Further Statement of Facts and Contentions dated 13 July 2005
Exhibit A5Documents entitled Disability Programs, Disability Starter Kits from the US Social Security Administration
Exhibit A6Statement of Mr J. Burnside taken on 13 July 2005
Exhibit A7Letter to the Applicant’s mother from the US Social Security Administration regarding Supplementary Security Income (SSI) dated 26 June 1997
Exhibit A8Reports of Associate Professors B. Siegel and G. R. Elliot, University of California dated 17 January 1996
Exhibit A9Report of Dr D. Gilbertson, Education Psychologist, USA dated 2 May 1987
Respondent’s Documents
Exhibit R1 a document headed Supplemental Security Income for Non‑citizens, SSA Publication No. 05-11051, January 2004, < R2Centrelink Guide to the social security agreement between Australia & USA, < BEFORE THE TRIBUNAL
RORY BURNSIDE
9. Rory described his daily routine going to and from the RVIB by taxi, spending his school days studying piano, guitar and singing; in addition to the major aim of the school in teaching the blind to become independent in terms of shopping, cooking, household skills and using public transport. Rory said he also studied art and as part of his physical education subject he swam regularly.
10. Rory informed the Tribunal that since the diagnosis of epilepsy and the instigation of treatment, his lifestyle had changed in that he had to make sure he ate at regular intervals, went to bed early and is no longer permitted to indulge in high‑risk physical pursuits. He found that he fell asleep quite readily and had less energy than before. Rory found the giving of evidence trying and somewhat distressing but he coped well in the circumstances.
DR DEBORAH DUNCAN
11. Dr Duncan confirmed that Rory had been born with anophthalmia and a cleft palate which required extensive surgery. And he had, at the age of seven or eight, been diagnosed with Asperger's syndrome. Following this diagnosis, he was commenced on Zoloft which he still takes. She said the Asperger's syndrome makes him exceeding rigid in his ability to deal with any type of different situation, a change in routine, just any sort of change in direction, transitions (Transcript, p20). To her knowledge, the Zoloft had been prescribed because of his compulsive obsessive rituals, his rigidity and anger and never had it been suggested that he suffered from anxiety or depression. However, Dr Duncan has noted that Rory is more anxious since he was diagnosed with epilepsy. Since commencing on Tegretol for his epilepsy, Rory has become extremely drowsy, falling asleep at school and whenever in a moving vehicle. Dr Duncan said he puts himself to bed earlier than was his pre‑epilepsy habit but continues to follow fairly rigid regimes. For example, after school he will perform repetitive things which appear to calm him down, following which he will have a nap. At exactly, 4:50 pm he awakes, practices the piano until 5.30 pm and then watches a television program after he has fed the dog (Transcript, p24). At 6:00 pm he listens to the news, following which he stays in his room and listens to music; and at exactly 9:30 pm, he has a shower and puts himself to bed.
12. Dr Duncan said that Rory has good skills as a vision impaired person and is fluent as a Braille reader and writer. Only his behaviour remains a problem. His teachers at the RVIB School do not believe that he would be able to independently use public transport, particularly as he falls asleep in moving vehicles. In addition, he has trouble coping with crowds. Dr Duncan did not believe that Rory would ever be able to work given the 77 per cent unemployment rate in blind adults, but that he might be able to work within a sheltered workshop. Rory’s future education was in doubt given that he could not continue at the RVIB School beyond the end of 2005 and Dr Duncan was currently exploring possibilities for further education, such as a place in an Autism School in South Melbourne and enrolment in a short music course at the TAFE. Since his father has migrated to Australia, Rory now sees him approximately twice a month. More frequent contact has been affected by Rory’s need to go to bed early, which does not fit in with his father’s professional musician responsibilities which generally involve working late nights.
13. Under cross‑examination Dr Duncan confirmed that the Zoloft had been prescribed for an obsessive compulsive disorder, not for anxiety or depression. However, in the last two to three years she had noted that Rory was more anxious and, to a degree, depressed. Ms King also questioned Dr Duncan with respect to Rory’s future education. Dr Duncan said she was looking at distance education in musical appreciation and hopefully attendance at a TAFE school for autistic children. She did not believe that Rory would be able to cope with full‑time formal education such as four days per week. Dr Duncan also advised that Rory would probably have to have at least another half a dozen surgical procedures in the next few years.
14. Dr Duncan confirmed that she had completed a Masters in Public Health in Epidemiology at the University of California, Berkley Campus, following which she had obtained entry into the Doctoral programme on scholarship and during her studies had worked as a research assistant and continued to work post- doctorate at the Kaiser Institute in the field of nutrition. In re‑examination by Ms Rasheva, Dr Duncan agreed that Rory’s epilepsy was well controlled on medication, to the extent that he had not had a seizure for some two years. However, they had been advised by his treating neurologist, Dr Rowe, that should the Tegretol be ceased, the recurrence of grand mal epilepsy would be highly likely. Dr Duncan had observed that the Tegretol had resulted in a lack of energy and increased sleepiness. Dr Duncan had also noted that since being on Tegretol, Rory’s memory had diminished and he had become photo‑sensitive (a known side effect of Tegretol) to such an extent that exposure to the sun resulted in a skin rash.
DOCUMENTARY EVIDENCE
15. Dr Duncan had provided a statement, to which she spoke in her oral evidence (Exhibit A1).
16. Dr S. Lowe provided a report dated 26 February 2005 (Exhibit A2). Dr Lowe is Rory’s general practitioner. In his report he confirmed the diagnosis of permanent blindness, Asperger's syndrome, epilepsy and depression, as well as the side effects of the epilepsy treatment. Dr Lowe stated that Rory was attending Dr D. Bornstein, a psychiatrist, at fortnightly intervals, for treatment of his depression. He said that the combined conditions precluded Rory from working. Dr Lowe regarded the attitude of the respondent to Rory’s claim for the DSP as equating to child abuse.
17. Dr P. Rowe, a paediatric neurologist, is Rory’s treating neurologist. Dr Rowe also confirmed the known diagnoses and that Rory’s conditions prevented him from working. Dr Rowe did however express the hope that in the longer term, Rory’s musical abilities might allow some form of work. Despite this, he was of the opinion that Rory would require continuing supervision and monitoring by his carers. Dr Rowe assessed Rory’s impairment rating as being in excess of the required 20 points. This assessment was based on the neurological function chart of the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders alone and did not take into account Rory’s congenital disabilities.
18. The Applicant had accessed a document via the internet entitled Disability Programs and Disability Starter Kits from the US Social Security Administration web site. This document refers to child disability benefits under the SSI Benefits. These benefits are based on the child being seriously limited by physical or mental condition, with little or no income and resources. They are also dependant upon the family’s household income and resources. The SSI Benefits apply only to a child between birth and the age of eighteen. The alternative program, termed the Social Security Disability Insurance (SSDI) Program applies to an adult‑child, that is, a person aged eighteen or older. The SSDI Payments are again dependent on a severe disability which commenced before the age of twenty‑two, and that the adult‑child’s parents have worked long enough to be insured under social security and are receiving retirement or disability benefits or are deceased
19. Mr J. Burnside provided a statement, taken on the 13 July 2005 (Exhibit A6), stating that it was always Dr Duncan’s intention to return to Australia once she finished her PhD and it was initially his intention to accompany her back to Australia. Mr Burnside outlined the surgical procedures performed on Rory as a child to provide him with the prothetic eyes, which are non‑functional, and the repair of his cleft lip and palate. Throughout the period of their marriage, Mr Burnside said that Dr Duncan had never considered herself other than an Australian citizen and a temporary resident in the USA.
20. The Tribunal was provided with a letter from the US Social Security Administration to Dr Duncan, dated 26 June 1997 (Exhibit A7). This letter advised that Rory was eligible to receive SSI Benefits under the provisions of the US Act. These payments were to commence on the 1 May 1997. The payments were based on his parent’s income and were subject to change if the parent’s income changed. At the time Dr Duncan had applied for SSI Benefits because of Rory’s disabilities, a claim was also lodged for social security benefits for Rory. The US Social Security Administration determined that he was not eligible for any social security benefits. Attached to this letter was an outline of previous payments which had commenced on the 7 January 1987 and continued until the 9 January 1993. Rory received SSI payments for a total of seven years in accordance with the US Act.
21. During the course of the hearing, Dr Duncan provided the Tribunal with the report of Associate Professor G. Elliot of the University of California (Exhibit A8). Professor Elliot is the Professor and Director of Child and Adolescent Psychiatry. Professor Elliot diagnosed Asperger's syndrome, advised special educational placement for Rory and the commencement of Zoloft. Alternative medication was outlined. Rory was also seen on 4 October 1994 by Dr D. Gilberton, an educational psychologist, who diagnosed an obsessive compulsive disorder (Exhibit A8).
RELEVANT LEGISLATION
22. The Australian Social Security Act 1991 (the Act) provides as follows:
94. Qualification for Disability Support Pension – continuing inability to work
(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; 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; and
(f) the person is not qualified for disability support pension under section 94A.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2:for Impairment Tables see section 23(1) and Schedule 1B.
23. Section 95(1) of the Act states that a person is qualified for a disability support pension if the person is permanently blind, has turned 16 and is an Australian resident. The Act defines an Australian resident as:
7(2) An 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).
…
7(5) 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.
24. Section 23(4B) of the Act states:
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.
25. On 27 September 2001 the Australian government and the US government signed an agreement on social security between Australia and the USA. The agreement contained in Schedule 13 of the Agreement Act (the Agreement) states:
Article 1
Definitions
1. For the purpose of this Agreement:
(a) “Agency” means,
as regards the United States, the Social Security Administration, and
as regards Australia, the institution or agency responsible for the administration of the laws;
(b)“benefit” means in relation to a Party, a benefit, pension or allowance for which provision is made in the laws of that Party, and includes any additional amount, increase or supplement for which a beneficiary is qualified but, for Australia, does not include any benefit, payment or entitlement under the law concerning the superannuation guarantee;
(c)“carer payment” means, in relation to Australia, a carer payment payable to the partner of a person in receipt of an Australian benefit;
(d) “Competent Authority” means,
as regards the United States, the Commissioner of Social Security, and
as regards Australia, the Secretary of the Commonwealth Department responsible for the laws specified in subparagraph 1(b)(i) of Article 2 except in relation to the application of Part II of the Agreement (including the application of other Parts of the Agreement as they affect the application of that Part) where it means the Commissioner of Taxation or an authorised representative of the Commissioner;
(e) “laws” means,
as regards the United States, the laws and regulations specified in subparagraph 1(a) of Article 2, and
as regards Australia, the laws specified in subparagraph 1(b)(i) of Article 2 except in relation to the application of Part II of the Agreement (including the application of other Parts of the Agreement as they affect the application of that Part) where it means the laws specified in subparagraph 1(b)(ii) of Article 2;
(f) “national” means,
as regards the United States, a national of the United States as defined in Section 101, Immigration and Nationality Act, as amended, and
as regards Australia, a citizen of Australia;
(g)“period of Australian working life residence”, in relation to a person, means, unless otherwise provided in this Agreement, a period:
(i) defined as such in the laws of Australia; and
(ii)during which the person was employed or self-employed or the person’s employer was subject to the laws specified in subparagraph 1(b)(ii) of Article 2;
but does not include any United States period of coverage deemed pursuant to Article 9 to be a period in which that person was an Australian resident.
(h)“social security laws” means, in relation to Australia, all the Acts forming the social security law without any limitation, including the limitation imposed by Article 2.
(i)United States period of coverage means a period credited as a quarter of coverage under the laws of the United States, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States;
(j)“widowed person” means, in relation to Australia, a person who stops being a partnered person because of the death of the person’s partner, but does not include a person who has a new partner.
2.Any term used in this Agreement and not defined in this Article shall have the meaning assigned to it in the applicable laws.
Article 2
Scope
1. For the purpose of this Agreement, the applicable laws are:
(a)As regards the United States, the laws governing the Federal old-age, survivors, and disability insurance program:
-Title II of the Social Security Act and regulations pertaining thereto, except sections 226, 226A and 228 of that title and regulations pertaining to those sections,
-Chapters 2 and 21 of the Internal Revenue Code of 1986 and regulations pertaining to those chapters;
(b) As regards Australia,
(i)the Acts forming the social security law insofar as the law provides for, applies to or affects the following benefits:
(A) age pension;
(B) disability support pension for the severely disabled;
(C) pensions payable to widowed persons; and
(D) carer payment.
(ii)the law concerning the superannuation guarantee (which at the time of signature of this Agreement is contained in the Superannuation Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Regulations).
2. Notwithstanding the provisions of paragraph 1(b), this Agreement shall apply to women who are receiving wife pension at the date this Agreement comes into force and who are the wives of:
(a)persons receiving age pension; or
(b)persons receiving disability support pension for the severely disabled.
3. Unless otherwise provided in this Agreement, the laws referred to in paragraph 1 shall not include treaties or other international agreements on social security that may be concluded between one of the Parties and a third State, or laws or regulations promulgated for their specific implementation.
4. This Agreement shall also apply to future laws which amend or supplement the laws specified in paragraph 1 of this Article.
Article 3
Personal Scope
This Agreement shall apply to any person who:
(a)is or has been an Australian resident; or
(b)is or has been subject to the laws of Australia; or
(c)is or has been subject to the laws of the United States
and, where applicable, to other persons in regard to the rights they derive from a person described above …
Article 9
Totalisation in Relation to Australian Benefits
1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
(a)a period as an Australian resident that is less than the period required to qualify that person, on that ground, for that benefit under the laws of Australia;
(b)a period of Australian working life residence equal to or greater than the period identified in accordance with paragraph 4 for that person; and
(c)a United States period of coverage,
then for the purposes of a claim for that Australian benefit, that United States period of coverage shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the laws of Australia, to be a period as an Australian resident.
2.For the purposes of paragraph 1, where a person:
(a)has been an Australian resident for a continuous period which is less than the minimum continuous period required by the laws of Australia for entitlement of that person to a benefit; and
(b)has accumulated United States periods of coverage in two or more separate periods that equal or exceed in total the period referred to in subparagraph (a),
the total of the United States periods of coverage shall be deemed to be one continuous period.
3. For all purposes of this Article, where a period as an Australian resident and a United States period of coverage coincide, the period of coincidence shall be taken into account once only by Australia as a period as an Australian resident but when it is not possible for the United States Agency to determine the time when specific periods of coverage were completed in any one calendar year, it shall be assumed that those periods of coverage do not coincide with periods in that year as an Australian resident but in no case shall the total of all those periods exceed one calendar year.
4. The minimum period of Australian working life residence to be taken into account for the purposes of paragraph 1 shall be:
(a)for the purposes of an Australian benefit that is payable to a person who is outside Australia, the minimum period required shall be 12 months, of which at least 6 months must be continuous; and
(b)for the purpose of an Australian benefit that is payable to a person who is in Australia, there shall be no minimum period.
SUBMISSIONS
26. The parties agreed that the Applicant did not meet the requirements for DSP as outlined in s 94 and s 95 of the Act as Rory had not been a resident in Australia for ten years at the time of his claim for a DSP.
27. Ms Rasheva submitted that the definitions and effect of the US Act and the Agreement Act were unclear and requested that these matters be further investigated and elucidated by the Respondent and if necessary, the US Department of Social Security. A list of questions to be put to the Department of Families, Community Services and Indigenous Affairs (the Department) and the US Department of Social Security were prepared and the Tribunal was requested to make orders seeking interpretation with respect to:
1.Clarification of the definition of the term
“‘United States period of coverage’ means a period credited as a quarter of coverage under the laws of the United states, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States.”
2. Is the term “a period credited as a quarter” of coverage explicable by reference to the scheme “Social Security Disability Insurance” (SSDI) in which social security taxes are paid by workers, employers and self employed persons and credits based on taxable work are allocated to entitle such persons to be “insured” for Social Security purposes? If not, how is this term defined?
(a)Are dependent children (under working age) of persons who have earned quarter credits under SSDI eligible to receive disability benefits by virtue of their parents having earned SSDI quarter credits? (ie can children receive “credit” for SSDI by virtue of their parents having earned the quarter credits) If not why not?
3. Is the term “or any equivalent period that may be used to establish the right to a benefit” explicable by reference to the Supplemental Security Income scheme (SSI) in which eligibility for Social Security disability benefits is financed, not through credits earned by employees and employers but rather through general revenues? If not, how is this term best defined?
(a)Apart from SSI and SSDI are there any other schemes, systems or methods of calculating and determining entitlement to disability benefits for children? If yes, what are they and how is entitlement under theme determined?
(b)How is children’s eligibility to receive disability benefits determined on the SSI scheme?
(c)How is children’s eligibility to receive disability benefits determined on the SSDI scheme (if at all)?
(d)If it is possible for children to be considered eligible to receive disability benefits under both systems (SSI and SSDI), how is that eligibility determined and how do the two schemes differ as far as children is concerned?
4. How is it possible to determine whether a period of coverage under the quarter credits system is “equivalent” to some other means of calculating entitlement to a benefit? (ie is there a table or chart or some other means of calculating periods of time for the purposes of the two schemes?)
28. The Respondent agreed that the application of the Agreement Act to disabled minors had not been considered by any court or tribunal in Australia. The cases cited by the respondent did not involve reference to the Agreement. Ms King supported the Applicant’s request for orders to the parties to facilitate the acquisition of further information and elucidation of the Agreement and how it might impact on Rory’s application for the DSP.
29. The Tribunal was of the opinion that the Agreement Act did not assist Rory’s claim, in light of Article 5, clause 3 of the Agreement which states:
Where qualification for an Australian benefit is subject to limitations as to time, then references to Australia in those limitations shall be read also as references to the United States when that benefit is payable by virtue of this Agreement.
30. The Tribunal further researched the effect of the Agreement Act and on 31 August 2005 advised the parties that the term a quarter of coverage was clear in it’s meaning; that the transfer of periods of social security coverage in the USA from a parent to a disabled child is not provided for and that the child’s eligibility for the SSI scheme clearly related to their parents’ income. The SSDI scheme limited eligibility to an adult child aged 18 years or more and Rory clearly did not qualify for this assistance.
31. The Tribunal interpreted the term a quarter of coverage as meaning that any individual employed or self-employed in the USA paid a Federal Tax Levy that included a sum for social security insurance. This amount was estimated, in accordance with income and from guidelines set by the Federal Government and adjusted for factors such CPI, for three monthly periods. Thus, someone employed full time could attain four quarters of coverage in a period of 12 months. As Rory was never employed during the period he resided in the USA he had no quarters of coverage credit.
32. After several directions hearings and written communications between the Tribunal and the parties, the Tribunal made the following directions on 20 April 2006:
...
WHEREAS:
A.while the Tribunal is of the opinion that The Agreement does not assist the applicant's claim, there are no legal precedents relating to a disabled child of joint US/Australian citizenship in the circumstances of the applicant; and
B.the Tribunal notes that the terms of The Agreement provide for co‑operation between the signatories in resolving such interpretation problems at no cost to the applicant; and
C.the decision regarding the applicant's mother's continuing residency in Australia, despite 17 years as a resident in the United States of America, remains a matter for the Tribunal alone:
NOW THEREFORE the Tribunal directs that:
1.both parties to seek further interpretation and elucidation of the points raised by the applicant from the Department of Families, Community Services and Indigenous Affairs arising from the Social Security Agreement between Australia and the United States of America (The Agreement);
2.the queries raised by the applicant are:
(a)clarification of the definition of the term "United States period of coverage means a period credited as a quarter of coverage under the laws of the United states, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States";
(b)is the term a period credited as a quarter of coverage explicable by reference to the scheme Social Security Disability Insurance (SSDI) in which social security taxes are paid by workers, employers and self‑employed persons and credits based on taxable work are allocated to entitle such persons to be insured for Social Security purposes? If not, how is this term defined?
(c)are dependent children (under working age) of persons who have earned quarter credits under SSDI eligible to receive disability benefits by virtue of their parents having earned SSDI quarter credits? (ie can children receive "credit" for SSDI by virtue of their parents having earned the quarter credits). If not, why not?
(d)is the term or any equivalent period that may be used to establish the right to a benefit explicable by reference to the Supplemental Security Income scheme (SSI) in which eligibility for Social Security disability benefits is financed, not through credits earned by employees and employers but rather through general revenues? If not, how is this term best defined?
(e)apart from SSI and SSDI are there any other schemes, systems or methods of calculating and determining entitlement to disability benefits for children? If yes, what are they and how is entitlement under them determined?
(f)how is children's eligibility to receive disability benefits determined on the SSI scheme?
(g)how is children's eligibility to receive disability benefits determined on the SSDI scheme (if at all)?
(h)if it is possible for children to be considered eligible to receive disability benefits under both systems (SSI and SSDI), how is that eligibility determined and how do the two schemes differ as far as children is concerned?
(i)how is it possible to determine whether a period of coverage under the quarter credits system is equivalent to some other means of calculating entitlement to a benefit? (i.e. is there a table or chart or some other means of calculating periods of time for the purposes of the two schemes?)
33. The Respondent consulted the Department. The Department was unable to provide further advice. The Department did however forward the questions raised by the Applicant to the Office of International Programs of the US Social Security Administration. The answers provided by that office are reproduced in full in an Appendix to this decision as it may be of assistance should any similar applications arise.
34. In summary, the advice of the US Social Security Administration confirmed the Tribunals’ understanding of the phrase period of coverage: that such periods of coverage apply to SSDI benefits, old age pensions and survivors insurance; they are calculated on the basis of payments of US social security contributions arising from wages from employment or self employment; that a child cannot receive quarters of coverage or credits by virtue of his or her parent having earned social security coverage unless the parent is disabled, retired or dead and had paid social security taxes while employed; the SSI program is not included in the Agreement; there are no other US Federal disability programs other than SSI and SSDI; SSI eligibility is based on a child and their parent’s income and resources and the child must have marked and severe functional limitations; and that SSI payments are based strictly on need with no relationships to quarters of coverage ie credits do not exist under the SSI program.
35. The Agreement does not benefit Rory’s application in any way. Section 94 and s 95 of the Act require a ten year period of residency in Australia. Rory does not satisfy this requirement. He will do so in August or September 2007. His disabilities are such that he will meet all the requirements of s 95 (Blind) and s 94 (General).
36. In the interim, Dr Duncan receives Centrelink benefits totalling $1096.56 per fortnight (as of 13 October 2005) some of which relates to Rory’s disability. Rory receives $280.47 per fortnight in the form of youth and mobility allowances.
37. The Tribunal has considered Rory’s development of grand mal epilepsy in 2003 but as he does not satisfy the residency requirements his condition is not relevant to this decision.
38. The Tribunal affirms the decision under review.
I certify that the thirty-eight [38] preceding paragraphs are a true copy of the reasons for the decision of:
Miss E.A. Shanahan, Member
(sgd) Ursula Noyé
Clerk
Date of Hearing: 14 July 2005
Date of Decision: 5 December 2006
Counsel for the applicant: Ms D. Rasheva
Solicitor for the applicant: Victoria Legal Aid
Advocate for the respondent: Ms E. King, Legal Services Branch, Centrelink
APPENDIX
Full Report from Mr Scott Cash, Office of International Programs, United States Social Security Administration, received on 28 August 2006.
Dear Jocelyn,
We have prepared answers in response to your inquiry in regards to disability benefits for a child who is presently sixteen years of age and resides in Australia. We have attempted to provide an explanation of the program qualifications, which addresses his residence, location and qualifications based on the possibility of his parent’s Social Security benefit status.
In order for a child to qualify for benefits under Social Security Disability Insurance (SSDI) the child must have a parent who is presently disabled or entitled to Social Security benefits, or the child must have a parent who died after having worked long enough in a job where he or she paid U.S. Social Security taxes. The child must additionally be unmarried, younger than 18; or be 18-19 years old and a full-time student (no higher than grade 12); or 18 or older and disabled. (The disability must have started before age 22.). Benefits stop when the child reaches age 18 unless the child is a student or is disabled.
Supplemental Security Income (SSI) is a Federal income supplement program funded by general tax revenues (not Social Security taxes) designed to help aged, blind, and disabled U.S. citizens and residents, who have little or no income. SSI provides cash benefits to meet basic needs for food, clothing, and shelter. Benefits under the SSI program have more significant restrictions than SSDI. A beneficiary under SSI must live in the United States and be a U.S. citizen or national. Due to the present location of the student, he would not qualify for SSI benefits. Furthermore, it should be noted that the SSI program is not included in U.S. International Totalization agreements. I have attached a document which offers additional information about the SSDI and SSI program.
Best Regards,
Scott
Scott Cash
Office of International Programs
U.S. Social Security Administration
Tel: (410) 965-0377Fax: (410) 966-7025
The following provides the explanations requested by the Department of Families, Community Services and Indigenous Affairs of Australia. It should be noted that the SSI program is not included within the scope of U.S. International Totalization agreements, including the agreement with Australia. Additionally, to receive benefits under the SSI program, a beneficiary must live in the United States and be a U.S. citizen or national.
(A) Clarification of the definition of the term “United States period of coverage”; means a period credited as a quarter of coverage under the laws of the United States, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States.
The term “United States period of coverage”, as used in the U.S.-Australian Social Security Agreement, means any period which is credited under the Social Security laws of the United States for purposes of determining Social Security benefit eligibility, including periods of covered employment and self-employment.
(B) Is the term a period credited as a quarter of coverage explicable by reference to the scheme Social Security Disability Insurance (SSDI), in which Social Security taxes are paid by workers, employers and self-employed persons and credits based on taxable work are allocated to entitle such persons to be insured for Social Security purposes?
Yes, although this is not restricted only to the disability insurance program. The term refers to quarters of coverage under the U.S. Social Security program, which includes old age and survivors insurance as well as disability insurance. The term refers to any period of payment of U.S. Social Security contributions based on wages for employment or on self-employment income.
(C) Are dependent children (under working age) of persons who have earned quarter credits under SSDI eligible to receive disability benefits by virtue of their parents having earned SSDI quarter credits? (i.e. can children receive “credit” for SSDI by virtue of their parents having earned the quarter credits).
No, a child cannot receive quarters of coverage or credits that count toward entitlement to U.S. Social Security benefits by virtue of his or her parent having earned U.S. Social Security coverage. Children may receive benefits as the dependent of a worker who has earned coverage under the system. For example, a child can get benefits if he or she is the worker’s biological child, adopted child or dependent stepchild. (In some cases, a child also could be eligible for benefits on his or her grandparents’ earnings.)
To get benefits, a child must have:
·A parent(s) who is disabled or retired and entitled to Social Security benefits; or
·A parent who died after having worked long enough in a job where he or she paid Social Security taxes.
The child also must be:
·Unmarried;
·Younger than 18;
·18-19 years old and a full-time student (no higher than grade 12); orl8 or older and disabled. (The disability must have started before age 22.)
Benefits stop when the child reaches age 18 unless the child is a student or disabled. If the benefit is payable on the record of a parent entitled to disability or retirement benefits, the child’s benefit would also stop if the parent no longer receives a benefit.
(D) Is the term or any equivalent period that may be used to establish the right to a benefit explicable by reference to the Supplemental Security Income scheme (SSI), in which eligibility for Social Security disability benefits is financed, not through credits earned by employees and employers but rather through general revenues? If not, how is this term best defined?
No, the phrase “or any equivalent period that may be used to establish the right to a benefit” in the definition of United States period of coverage in the U.S.-Australian Social Security agreement does not refer to the U.S. Supplemental Security Income program. The Supplemental Security Income (SSI) program is not included within the scope of the U.S.-Australian Social Security agreement. SSI is a Federal income supplement program funded by general tax revenues; not Social Security taxes. It is designed to help aged, blind, and disabled people, who have little or no income; and it provides cash to meet basic needs for food, clothing, and shelter. There are no periods or credits that are earned or otherwise accrue under the SSI program.
The phrase in question refers to a very limited number of periods not directly related to covered employment or self-employment for which coverage credits may be granted under the U.S. Social Security program. Such periods are currently limited to periods of deemed military wages, military service wage credits and periods granted to persons of Japanese ancestry interred during World War II. The language used in the agreement to encompass these periods is purposely non-specific, in order to include any similar periods legislated by the Congress subsequent to the agreement’s effective date.
(E) Apart from SSI and SSDI are there any other schemes, systems or methods of calculating and determining entitlement to disability benefits for children? If so, what are they and how is entitlement under them determined?
State and local governments provide a variety of programs designed to help meet the needs of children with disabilities. The U.S. Social Security Administration does not manage any other disability program, nor do we have information available on such programs. Although there are state and local government programs, benefits under such programs are generally restricted to residents of the state or locality providing the benefit.
(F) How is children’s eligibility to receive disability benefits determined on the SSI scheme?
SSI makes monthly payments to U.S. citizens with low income and limited resources who are 65 or older, or blind or disabled and who reside in the United States. A child under age 18 can qualify if he or she meets Social Security’s definition of disability for children, and if his or her income and resources fall within the eligibility limits. The amount of the SSI payment is different from one state to another because some states supplement the SSI payment.
When we decide if a child can get SSI, we consider the child’s income and resources. We also consider the income and resources of family members living in the child’s household. These rules apply if the child lives at home. They also apply if he or she is away at school but returns home from time to time and is subject to parental control.
If a child’s income and resources, or the income and resources of family members living in the child’s household, are more than the amount allowed, we will deny the child’s application for SSI payments.
A child must meet all of the following requirements to be considered disabled and therefore eligible for SSI:
The child must not be working and earning more than $860 a month in 2006. (This earnings amount changes every year.) If he or she is working and earning that much money, we will find that the child is not disabled.
The child must have a physical or mental condition, or a combination of conditions, that results in “marked and severe functional limitations.” This means that the condition(s) must very seriously limit the child’s activities.
The child’s condition(s) must have lasted, or be expected to last, at least 12 months; or must be expected to result in death. If the child’s condition(s) results in “marked and severe functional limitations” for at least 12 continuous months, we will find that the child is disabled. But if it does not result in those limitations, or does not last for at least 12 months, we will find that the child is not disabled.
(G) How is children’s eligibility to receive disability benefits determined on the SSDI scheme?
There are no specific childhood disability benefits under the Social Security program. Social Security benefits are only payable to dependent, minor children of a retired, disabled or deceased insured worker. Children of a retired, disabled or deceased insured worker need only be unmarried, younger than age 18 (18-19 years old and a full-time student) to receive benefits. A disability determination is only required to continue benefits after age 18 as a disabled adult child.
Social Security benefits for adults disabled since childhood
The Social Security program pays benefits to adults who have a disability that began before they became 22 years old. We consider this Social Security benefit as a “child’s” benefit because it is paid based on a parent’s Social Security earnings record.
For a disabled adult to become entitled to this “child” benefit, one of his or her parents:
·Must be receiving Social Security retirement or disability benefits; or
·Must have died and have worked long enough under Social Security.
These benefits are also payable to an adult who received dependents benefits on a parent’s Social Security earnings record prior to age 18, if he or she is disabled at age 18. We make the disability decision using the disability rules for adults.
Social Security disabled adult “child” benefits continue as long as the individual remains disabled. The child does not need to have worked to get these benefits. However, one of the child’s parents must have worked long enough under the U.S. Social Security program to establish entitlement to Social Security benefits.
(H) If it is possible for children to be considered eligible to receive disability benefits under both systems (SSI and SSDI), how is that eligibility determined and how do the two schemes differ as far as children are concerned?
A child under age 18 can medically qualify for disability benefits under SSI and SSDI if he or she meets Social Security’s definition of disability for children. If a person qualifies for a social security disability benefit, but that benefit is less than the maximum allowable amount under the SSI program, the person could also receive an SSI disability benefit. For example, assume the maximum SSI payment is $603 per month. If a child qualified for $200 per month as a disabled adult child on her father’s record, and the family meet all other applicable income and assets tests, she could receive an SSI benefit of $403 per month in addition to the $200 per month Social Security benefit.
A child may be eligible to get both SSDI and SSI if the total amount does not exceed the maximum amount allowable under the SSI program (which varies by state of residence).
(I) How is it possible to determine whether a period of coverage under the quarter credits system is equivalent to some other means of calculating entitlement to a benefit? (i.e. is there a table or chart or some other means of calculating periods of time for the purpose of the two schemes?).
Benefits under the SSI program do not require any quarters of coverage (or any work in the United States). The program is strictly based on need; provided one meets the disability and citizenship/residency requirements. The SSDI program is based on covered work and earnings under the Social Security program. Payments can be made concurrently under both programs to persons who qualify, but there is no means of transferring credits between the two systems, particularly as credits do not exist under the SSI program.
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