Callaghan and Secretary to the Department of Family and Community Services
[2004] AATA 258
•12 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 258
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/551
GENERAL ADMINISTRATIVE DIVISION )
Re THOMAS CALLAGHAN Applicant
And
SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date12 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. …(Sgd) J Cowdroy…
Member
CATCHWORDS
SOCIAL SECURITY – age pension – income test – meaning of “income” includes overseas pensions – permanent blindness not satisfied – decision affirmed.
Income Tax Assessment Act 1936
Social Security Act 1991, ss. 8, 35A, 1065, Schedule 1BVeterans' Entitlement Act 1986, s 5H(8)
Drake v Minister for Immigration, Multicultural and Indigenous Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration, Multicultural and Indigenous Affairs (No 2) (1979) 2 ALD 634REASONS FOR DECISION
12 March 2004 Ms J Cowdroy, Member 1. This is an application by Thomas Callaghan (the applicant) for review of a decision made by the Social Security Appeals Tribunal affirming a decision of a delegate of the Secretary, Department of Family and Community Services (the respondent). The decision held the applicant was not qualified to receive age pension on the basis of being permanently blind.
2. At the hearing in Gladstone, the applicant represented himself and the respondent was represented by Mr T Ffrench, the respondent’s advocate.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) numbered T1-T22 as well as Exhibit 1 tendered by the respondent. The applicant forwarded various medical reports and other documents to the Tribunal after the hearing (received 17 November 2003, 10 December 2003, 6 February 2004). The respondent filed a Statement of Facts and Contentions on 16 September 2003 and forwarded supplementary written submissions to the Tribunal on 2 December 2003.
BACKGROUND
4. The applicant is aged seventy-seven. He was blinded in his right eye following surgery for cataracts in 1999. He surrendered his drivers licence in June 2001. He applied for a war pension from the United Kingdom in respect of service in Second World War (the UK pension), and this has been paid to him from 22 November 1999. The receipt of the UK pension resulted in a reduction in the amount of age pension paid to the applicant, as the UK war pension was regarded as income under the Social Security Act 1991 (the Act).
5. The applicant has applied for payment of pension on the basis of blindness on two occasions. He now raises two issues through his application to this Tribunal: firstly, his entitlement to a blind pension, and, secondly, the assessment of his UK war pension as ‘income’ under the Act.
EVIDENCE
6. The applicant has set out in various letters to Centrelink and to this Tribunal that since being rendered blind in one eye he can no longer drive, was required to give up his licence, and this restricts his life. He has pointed out that he lives some 25km from the nearest public transport and is forced to incur the cost of taxis. This makes his frequent visits to medical practitioners more costly. He said that the receipt of the UK pension worsened his financial situation, as it led to a substantial reduction in his Australian age pension.
7. The applicant referred to extracts from publications produced by the Department of Veterans’ Affairs (DVA) which stated that a foreign disability pension paid to a veteran because of war related disabilities is not treated as income for DVA pensions. He noted also that such foreign pensions are not treated as income under taxation legislation. He said that it is anomalous that social security legislation treats the payments as income when other Departments do not.
8. Mr Callaghan pointed out that the letter dated 22 December 2000 from the War Pensions Agency, advising him that he was entitled to a war pension referred to disablement which is attributable to his war service.
9. In a medical report dated 17 April 2001 (T5), Dr B Donlon stated that the applicant’s visual acuity in his right eye was 6/60 and in left eye was 6/24 giving an overall visual acuity of 6/48. He said that the applicant’s vision problems were uncorrectable and he was unable to drive a car. In a report dated 15 December 2003 Dr B Martins stated that the applicant, though completely blind in the right eye, had corrected vision of 6/6 in the left. She stated that his restricted visual field rendered him unfit for a normal driving licence.
10. In a medical report dated 4 March 2003 (T9), Dr D Kitchen, ophthalmologist, stated that the applicant had an essentially normal visual field in the left eye, with corrected visual acuity of 6/12 in that eye as measured on the Snellan Scale (which is the most commonly used chart for testing the acuity of distant vision and which states that normal vision is 6/6).
CONSIDERATION OF THE ISSUES
11. The Social Security Act 1991 (the Act) provides that the rate of an age pension or disability support pension for a permanently blind person is calculated under a specific Rate Calculator: s1065(1). There is no definition of the meaning of ‘permanent blindness’ under the Act. Tribunal decisions on the meaning to be ascribed to the term have endorsed the policy definition provided as a guide to Centrelink decision-makers as an appropriate test. Although the Tribunal is not bound to apply policy or guidelines, following Drake v Minister for Immigration, Multicultural and Indigenous Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration, Multicultural and Indigenous Affairs (No 2) (1979) 2 ALD 634, the Tribunal will ordinarily apply policy in reviewing a decision, unless there is a cogent reason for not doing so. The policy provides as follows:
When determining permanent blindness for the purposes of disability support pension or age, the following guidelines are applied:
· Visual acuity on the Snellan Scale after correction by suitable lenses must be less than 6/60 in both eyes, or
· Constriction to within 10 degrees of fixation in the better eye irrespective of corrected visual acuity, or
· A combination of visual defects resulting in the same degree of visual impairment as that occurring in the above points.
12. This policy reflects provisions made in regard to assessing vision impairment in Tables 13 and 15 of the Tables for the assessment of work related impairment in Schedule 1B of the Act.
13. On the questions raised by the applicant about what will be included as income under the Act, s8 provides the following definition :
"income", in relation to a person, means:
(a) an income amount earned, derived or received by the person for the person's own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection ….. or (8);
14. The definition of income amount in s8 includes valuable consideration, personal earnings, moneys, and profits. The matters excluded under sub-section 8(8) include:
(zi)a payment towards the cost of personal care support services for the person, being a payment made under a scheme approved under section 35A;
15. The reference to s35A in that sub-section is a reference to a provision in the Act under which the Minister for Family and Community Services may make a written determination approving a scheme for the provision of personal care support. Once approved, money paid to recipients under such schemes then is exempt from the income test under the Act.
16. The applicant submitted that regard should be had to the fact that he had mobility problems including shortness of breath, which, combined with his vision problems, produce the situation where he has to be transported everywhere by taxis. The cost of such transport is considerable, given his modest income. The Tribunal accepts that this is the case, however it can only have regard to the matters which are stipulated in the legislation.
17. The respondent referred to the applicant’s earlier claim for blind pension and noted that this Tribunal had reviewed this in 2001, affirming the correctness of the decision to reject the earlier claim on the basis of the adequacy of the applicant’s corrected vision in the left eye. The Respondent’s Statement of Facts and Contentions referred to medical reports at the time, which showed that the applicant had visual acuity or 6/60 in the right eye but 6/15 in the left. The respondent referred also to Dr Kitchen’s report which showed visual acuity of less than 6/60 in the right eye and 6/12 in the left eye.
18. With regard to the matters raised on the question of ‘income’, Mr Ffrench stated (supplementary submissions, 2 December 2003) that the wide definition of ‘income’ in the Act means that a pension of the kind that the applicant receives from the UK will be counted as ‘income’, unless it falls under the exclusions set out in s8(8) of the Act. He submitted that the UK pension was not a personal care support scheme, which would be exempt under s8(8)(zi). He submitted that the Minister for Family and Community Services had made declarations under s35A of the Act, including a declaration that a United Kingdom Disability Living Allowance is a payment under a personal care support scheme.. This allowance was then exempted from income testing.
19. Mr Ffrench submitted that the applicant’s UK pension was not a payment of that kind. He referred the Tribunal to material about the Disability Living Allowance (Attachment 4 to the supplementary submissions) which showed it as a supplementary payment, with its own eligibility criteria. The applicant does not receive this payment.
20. The Tribunal reached its decision taking into account the oral and written evidence and submissions. The Tribunal was satisfied that the applicant’s vision in the left eye is such that he cannot meet the test for blind pension. Dr Kitchen’s report shows that the applicant has corrected vision in the left eye of 6/12, which equates essentially to normal visual field in that eye. Thus, although the applicant is totally blind in one eye, the left eye is well corrected and Dr Kitchen states that there are no other visual defects present that would combine to give a vision impairment equivalent to blindness. Consequently, the Tribunal finds that the applicant is not qualified to receive pension on the basis of being permanently blind.
21. The Tribunal accepts the respondent’s submission that the definition of income in the Act is wide, and includes the payments made under overseas pensions such as the UK pension received by the applicant. Whilst it may seem anomalous that such a pension might receive different treatment under different pieces of legislation, the Tribunal must apply the provisions of this Act without regard to what might be defined as income under other legislation. It has been noted in Court and Tribunal decisions that the definition of income in the Act is widely drawn, and that it is far wider than the definition in the Income Tax Assessment Act 1936. The Tribunal also notes that, though adopting the same definition of income as the Act, the Veterans’ Entitlements Act (1986) specifically exempts (at s5H(8)(e)) the following:
a payment… in respect of incapacity or death resulting from employment in connection with a war or war-like operations in which the Crown has been engaged;
There is no similar exemption in the Act. The Tribunal was satisfied that the applicant’s UK pension is not a pension or allowance about which the Minister has made a written determination under s35A, which is a requirement for an exemption under s8(8)(zi).
22. The Tribunal was satisfied that the UK pension must be treated as income under the Act as moneys… received, and that none of the exemptions in s8(8) applies to it.
DECISION
23. For these reasons the Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Sam Appleton
Associate
Date/s of Hearing 4 November 2003
Date of Decision 12 March 2004
The Applicant appeared in person
For the Respondent Mr T Ffrench, Departmental Advocate
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