Cameirao and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2007] AATA 2096

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2096

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0638

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN DO NASCIMENTO CAMEIRAO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM

Date21 December 2007

PlaceHobart

Decision The decision under review is affirmed.

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

Part-Time Member

CATCHWORDS

Social Security - disability support pension - person resident in Portugal - application and eligibility - impairment rating - inability to work - application rejected - SSAT review - appeal to AAT

LEGISLATION

Social Security Act 1991, Section 94 (1) (a) (b) & (c)

Social Security (International Agreements) Act 1999, Schedule 9

Guide to Social Security Law Section 1.1.5.110

AUTHORITIES

Drake and Minister for Immigration and Ethnic Affairs, 1979, 2 ALD 60

McDonald and Anor and SDFCS (2004) AATA 185

Sayan and SDFCS (2001) AATA 950

Walsh and SDFCS (2002) 71 ALD 269

Todovoski and Anor and SDFCS (2004) AATA 185

Ellul and SDEWR (2006) AATA 488

REASONS FOR DECISION

21 December 2007 Associate Professor B W Davis AM

DECISION UNDER REVIEW

1.      The decision under review is a decision made by a Centrelink Officer on 3 March 2006, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 24 January 2007, to reject Mr John Cameirao’s claim for disability support pension (DSP).

ISSUES

2.      The issues in this case are:

(a) Does Mr Cameirao have a physical, intellectual or psychiatric impairment as defined in Section 94(1) of Social Security Act 1991 (the Act)?

(b)      Does he have a diagnosed condition that has been investigated, treated and stabilised, and is likely to continue for at least two years?

(c)       If yes, does Mr Cameirao’s impairment rate at least 20 points on the Impairment Tables set out in Schedule 1B of the Act?

(d)      Is Mr Cameirao severely disabled in that he is unable to work 8 hours per week?

LEGISLATION

3.      The relevant legislation is the Social Security Act 1991 and Amendments, especially Section 94(1)(a), (b) and (c) and the Impairment Tables set out in Schedule 1B of the Act. As the applicant resides in Portugal and there is an agreement in place between the Government of Australia and the Government of Portugal concerning social welfare matters, Schedule 9 of the Social Security (International Agreements) Act 1999 is relevant.

STANDARD OF PROOF

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

BACKGROUND

5.      The applicant, John do Nascimento Cameirao, is a resident of Portugal, but a former resident of Australia.  Mr Cameirao lodged an application for Australian disability support pension (DSP) on 6 January 2006, but a Centrelink officer decided on 2 March 2006 Mr Cameirao was not “severely disabled’ within the meaning of the Agreement between Australia and Portugal on social security matters, hence he was not qualified to receive disability support pension.

6.      The applicant contacted Centrelink on 14 March 2006, indicating he would be supplying supplementary medical information.  The matter was reviewed by the original decision-maker on 27 July 2006, taking into account the additional information received in May, but the decision to reject the application was not changed as a result of the review.

7.      The matter was then referred to a Centrelink authorised review officer (ARO) who on 31 July 2006 decided to affirm the existing decision.  In reasons for decision the ARO noted that:

·Mr Cameirao suffers from depression, elbow arthrosis and bilateral knee arthritis.

·HSA (Health Services Australia) said it was not clear which elbow was affected, but probably both, but the disability attracted a zero impairment rating in Table 3 of the Disability Rating Tables.

·HSA considered the applicant’s depression was well controlled with medication.  This was consistent with comments made by Dr Couto, however Mr Cameirao had not seen a psychiatrist for treatment.   The review officer accepted the rating of nil pursuant to Table 3 for this condition.

·The review officer accepted the HSA rating of 10 points for bilateral knee athrosis, consistent with information provided by Dr Couto.

·In summary the ARO concluded Mr Cameirao did not qualify for DSP, as he did not have medical conditions which attracted an impairment rating of at least 20 points.

8. The applicant decided to appeal to the Social Security Appeals Tribunal on 25 October 2006. A hearing was conducted in Hobart on 24 January 2007, the Tribunal deciding to affirm the decision under review. The SSAT considered Mr Cameirao’s knee condition attracted an impairment of 20 points and elbow arthritis 10 points, resulting in 30 points overall. However the SSAT was not convinced the applicant had an ongoing inability to work. This meant he was not ‘severely disabled’ within the meaning of Section 23 (4B) of the Social Security Act 1991, and did not qualify for DSP.

9.      Mr Cameirao applied for de-novo review by the Administrative Appeals Tribunal on 7 February 2007.

THE AAT HEARING

10.     A teleconference hearing was conducted in Hobart on 13 December 2007.  Mr Cameirao was in Portugal and self-represented as applicant.  The respondent was represented by Miss Allison Devine of counsel.  An interpreter was available, but proceedings were conducted in the English language.

11.     After being affirmed, the applicant responded to a series of questions put to him and an invitation to address any matters he considered should be noted.  The applicant said his condition had worsened in the past two years, in that he experienced ongoing pain in dealing with everyday chores but now found walking more difficult; and it was not possible to drive or use public transport, which did not exist in his area, thus he was reliant upon friends for mobility.

12.     His depression remained, but his medical condition had improved since he recognised he would become eligible for the Portuguese age pension in twelve months time, when he turned 65 years of age.

13.     In response to questions put by counsel for the respondent, he said he would like to work, but it was not feasible because potential employers were unwilling to accept him, given his disabilities and age and five years out of the workforce.  He felt capable of light duties, but it would be difficult to operate consistently and there was only a limited number of tasks he could cope with.

14.     In closing submission he said he had sought further medical evidence, but been rebuffed by a medical panel who said there was nothing further they could do and he should await the age pension in a year’s time.

15.     Counsel for the respondent said it was clear from evidence available in documentation and given at the hearing that Mr Cameirao did not meet provisions of the Act and the Agreement between Australia and Portugal on social security matters, in that he did not have 20 points or more disability rating, was not severely disabled and had some ongoing ability to work.

ANALYSIS

16.     The Tribunal is required to conduct a de-novo review of all available evidence, taking into account statutory and policy provisions and any relevant prior case precedents, in order to reach a ‘correct and preferable’ decision about the case.

17. The law governing qualification for Australian disability support pension for a person who resides in Portugal is contained in Section 94(1) (1), (b) and (c) of the Social Security Act 1991 and in Schedule 9 of the Social Security (International Agreements) Act 1999, which contains the agreement between Australia and the Republic of Portugal concerning social security matters.

18. Articles 2 and 14 of Schedule 9 of the International Act provides that a person living in Portugal may qualify for Australian DSP if they at some time resided in Australia and they are severely disabled.

19. One of the qualifications for DSP is that the person must have a physical, intellectual or psychiatric impairment (Section 94(1)(a) of the Act). The Tribunal has found that Mr Cameirao suffers from depression has upper arm and knee arthritis and is therefore satisfied he meets basic provisions of Section 94(1) (a) of the Act.

20. Mr Cameirao’s medical conditions must also attract an impairment rating of at least 20 points under the Impairment Tables set out in Schedule 1B of the Act (see Section 94(1) (b). To apply the Impairment Tables the impairments must constitute a loss of functional capacity and have been diagnosed, treated and stabilised, but likely to continue for more than two years.

MEDICAL EVIDENCE

21.     When Mr Cameirao applied for DSP in November 2004, there was only limited evidence supporting his case.  In a questionnaire completed by the applicant in September 2004 he claimed to be suffering shortness of breath, chest pain, blood pressure and associated problems in his stomach area, elbows, knees, his nervous system and undergoing severe stress.  He stated he had problems lifting and holding things but could still bathe himself and do some cooking.  He faced problems going up stairs but was alright coming down and had no major problems in standing, sitting or bending.  He considers himself capable of some light work, but because of his disabilities would not prove as reliable an employee as some would want.

22.     It was not until April 2006 that a medical report was received from a Dr Couto, confirming the applicant suffered from depression, elbow arthrosis and bilateral (knee) gonarthrosis.  Dr Couto’s report also contained some explanatory detail:

·Mr Cameirao’s reactive depression appeared to have commenced around August 2004;

·He was being treated by a GP and not a psychiatrist, he had not been hospitalised, but his depression was chronic but controlled through medication;

·He had suffered elbow arthrosis since 2003, right side dominant and sometimes could not hold or dropped things;

·He did not perform home duties or supermarket shopping, but was capable of personal hygiene and some everyday activities;

·He had some problems walking on uneven ground and rising from a sitting position, but with the aid of a cane was capable of walking 200-300 metres on flat ground, with intervening rests;

·He was in constant pain with progressive aggravation as the day went by.  He was taking diclofnac for his condition, but the doctor considered a reassessment would be needed within two years.

23.     A medical report from Dr Wnekowski of Health Services Australia (HSA) dated 17 July 2006, based on the existing documentation, led to the following assessment:

·The applicant was 62 years old at the time and had not worked for the past five years, his normal vocation being car salesperson;

·The onset of depression came in August 2004, but he had not consulted a psychiatrist, relying upon medication prescribed by his GP;

·On the evidence available, Dr Wnekowski rated his impairments as zero points for controlled depression, 10 points for bilateral knee arthrosis and zero points for elbow arthritis, on grounds the conditions had been diagnosed, treated and caused only limited interference with everyday life.  The doctor considered the total impairment rating to be only 10 points, with the applicant capable of up to 30 hours work per week, but with some restrictions applying.  (The Tribunal notes this is at some variance with the SSAT’s identification of total impairment of 30 points).

24.     To summarise the situation, as far as Mr Cameirao’s chronic depression is concerned, all parties were agreed this should be rated under Table 6 at zero points, as the disability was controlled by medication.  The Tribunal has minor qualms about this sweeping assessment, both in terms of the impact of various disabilities on the applicant’s everyday life and the reality that his depression has never been assessed by a psychiatrist.  But in the absence of other medical evidence, the Tribunal accepts a zero point rating.

25.     In terms of elbow arthritis, both Dr Couto and Dr Wnekowski identify a number of difficulties the applicant faces in everyday situations, but nonetheless gave a zero points rating under Table 3, arguing there is only moderate interference with upper arm function.  The Tribunal tends to agree with the SSAT that moderate interference with function should attract a disability rating of at least 10 points.

26.     In terms of knee disability, both Dr Couto and Dr Wnekowski identify problems in walking on uneven ground, climbing stairs, using public transport or driving a vehicle, sitting or standing for prolonged periods, suffering ongoing pain, needing a cane as walking aid and undergoing aggravation of the disability as the day progresses.  Dr Wnekowski decided an impairment rating of 10 points under Table 4 was appropriate.   The SSAT considered the disability constituted a more significant impact on Mr Cameirao’s lifestyle, warranting a disability rating of 20 points, rather than 10.

27. Overall then, the respondent and Dr Wnekowski argue that the final disability rating is 10 points, but the SSAT assessed it as 30 points and the Tribunal tends of consider it likely to be at least 20 points, given the weight of evidence, about effects on the applicant’s lifestyle. If the impact is 20 points or more, then the Tribunal most consider whether there is an ongoing inability to work, within the meaning of Section 94(2) of the Act. Unfortunately for Mr Cameirao this is where three factors come together to convince the Tribunal the applicant does not qualify for DSP.

28.     First it should be noted that Mr Cameirao’s medical evidence was lodged some weeks after his application for DSP and not within the permitted period of 13 weeks as prescribed in Section 42 of the Act and Schedule 2 of the Social Security Administration Act 1999.  Medical evidence after that date can be noted, but the strict requirement is that any claimed disability must be fully documented as diagnosed, treated and stablised within 13 weeks of the lodgement of claim.   The applicant did not meet that criterion.

29. Second, there is the issue of inability to work, which must be such that the impairment(s) are sufficient of their own to prevent the person from doing any work within two years or undertaking educational or vocational training within the next two years. The available medical evidence and the applicant’s own admissions are that he would dearly like to work, but considers it not only difficult to gain employment, given his age and disabilities, but doubts he could operate effectively. It is not a case that he claims inability to work, but rather that Dr Wnekowski believes him capable of working up to 30 hours per week, if a suitable position can be found. This is unlikely to occur, since he will be 65 years old in 2008 and then qualify for Portuguese old-age pension. Currently he clearly does not meet the criteria for ‘inability to work’ identified in Section 94(2) of the Social Security Act 1991.

30. Third, under the International Agreement between Portugal and Australia, DSP can only be paid if the applicant is ‘severely disabled’ within the meaning of Section 23(4B) of the Act. As stated in Part 1.1.5.110 of the Guide to Social Security Law a customer 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 two years, and

·Benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours per week.

Dr Wnekowski found the applicant fit for up to 30 hours of work per week, if a suitable vocation could be identified, so Mr Cameirao must be regarded as currently unemployed but not ‘severely disabled’, thus he does not meet the test of Section 23(4B). Taken collectively these three reasons indicate why Mr Cameirao does not meet the criteria for receipt of disability support pension.

DECISION

31.     Having conducted its de-novo review the Tribunal has decided on the balance of probabilities the decision to reject Mr Cameirao’s application for DSP on 2 march 2006 was correct and is further supported by the SSAT’’s decision of 24 January 2007.  The decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-Time Member)

Signed:   H Healy (Administrative Assistant)

Date/s of Hearing  13 December 2007
Date of Decision  21 December 2007
Counsel for the Applicant         Self-represented
Counsel for the Respondent     Miss A Devine
Solicitor for the Respondent     Centrelink Legal Services