Carroll and Secretary, Department of Social Services (Social services second review)

[2015] AATA 982

Carroll and Secretary, Department of Social Services (Social services second review) [2015] AATA 982 (27 November 2015)

Division	GENERAL DIVISION
File number	2015/1020
Phillip Carroll
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	27 November 2015
Date of written reasons	17 December 2015
Place	Canberra

The decision of the Social Security Appeals Tribunal on 28 January 2015 is affirmed.

.............................[sgd]...........................................

James Popple, Senior Member

CATCHWORDS

SOCIAL SECURITY — pensions — disability support pension — residence requirement — continuing inability to work — applicant must meet residency requirement when he first had continuing inability to work — applicant suffered severe impairments prior to becoming an Australian resident — decision affirmed.

LEGISLATION

Social Security Act 1991, ss 7, 94

CASES

Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr James Popple, Senior Member

17 December 2015

1. On 27 November 2015, I conducted a hearing in this matter. I gave my decision, and my reasons, orally at that hearing. On 7 December 2015, the applicant requested written reasons for my decision. These are those written reasons. My reasons have been prepared having regard to the requirement, in s 2A(c) of the Administrative Appeals Tribunal Act 1975, that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.

   Background

2. On 26 June 2014, Mr Phillip Carroll lodged a claim for the disability support pension (the DSP).  On 1 July 2014, Centrelink rejected his claim.  Mr Carroll sought review of that decision.  On 29 September 2014, an authorised review officer affirmed the earlier decision.  On 14 November 2014, Mr Carroll applied to the Social Security Appeals Tribunal (the SSAT) for review of that decision.  On 28 January 2015, the SSAT affirmed Centrelink’s decision.

3. On 4 March 2015, Mr Carroll applied to the Tribunal, under s 179 of the Social Security (Administration) Act 1999, for review of the SSAT’s decision.

   Does Mr Carroll qualify for the DSP?

4. The issue in this review is whether Mr Carroll qualifies for the DSP. Section 94(1) of the Social Security Act 1991 (the SS Act) relevantly provides:

   94  Qualification for disability support pension

   (1)A person is qualified for disability support pension if:

   …

   (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; …

   …

   Section 7 of the SS Act relevantly provides:

   7Australian residence definitions

   …

   (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.

   …

   (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.

   …

5. A claim for the DSP must be assessed as at the date of the claim or within 13 weeks after that date.[1]  The relevant period for Mr Carroll’s claim is 26 June to 25 September 2014.

   [1]     Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253 [1] per Gyles J. See Social Security (Administration) Act 1999, s 42 and clause 4(1) of Schedule 2.

6. The following facts are accepted by Mr Carroll and the Secretary. Mr Carroll was born in the United Kingdom. He has lived in Australia since 1998. He was granted a permanent visa on 14 December 2010. So, because of s 7(2), for the purposes of the SS Act, he was an Australian resident only from that date. He does not satisfy ss 7(5)(a) or (b), so he does not have ten years qualifying Australian residence for the purposes of the SS Act. He does not have a qualifying residence exemption. It follows that he does not satisfy s 94(1)(e)(ii). He was not a dependent child when he became an Australian resident. It follows that he does not satisfy s 94(1)(e)(iii).

7. So, to qualify for the DSP, Mr Carroll must satisfy s 94(1)(e)(i): that is, he must have been an Australian resident at the time when he first satisfied s 94(1)(c).

8. It is accepted that Mr Carroll has not participated in the supported wage system program. So, to satisfy s 94(1)(c), he must have a continuing inability to work. Section 94(2) of the SS Act provides:

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)  in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008–2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

   (a)  in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)  in all cases—either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Section 94(5) provides that, in s 94, work means work that is for at least 15 hours per week. Section 94(3B) provides that “[a] person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”.

9. Section 23(1) of the SS Act provides that Impairment Tables means the tables determined by an instrument under s 26(1).  That instrument is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.  The Impairment Tables define “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.[2]  An impairment rating can only be assigned to an impairment if the condition causing the impairment is “permanent” and the impairment is likely to persist for more than two years.[3]  A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years.[4]

   [2] Impairment Tables, s 3.

   [3] Impairment Tables, s 6(3).

   [4] Impairment Tables, s 6(4).

10. In this review, there is a dispute about whether Mr Carroll has a continuing inability to work—or, more accurately, whether he had a continuing inability to work during the relevant period.  But, I do not need to make a finding on this point, because Mr Carroll had a continuing inability to work before he became an Australian resident.

11. The Secretary points to medical evidence about Mr Carroll’s mental health condition and ankylosing spondylitis.  There is evidence that he suffered a mental health condition as early as 2000.  He was diagnosed as suffering from ankylosing spondylitis in 1986, when he lived in the United Kingdom.  Mr Carroll says that I should not give much weight to that diagnosis because it was made by a chiropractor.  But he concedes that he was diagnosed with ankylosing spondylitis in 1996 by a rheumatologist.

12. The evidence before me includes written reports from: Dr Mark Ryan, a consultant psychiatrist; Dr Hanish Bagga, a rheumatologist; Dr Thanh Huynh, a general practitioner; Dr Susan Ballinger and Ms Motshegetsi Dintsi, both clinical psychologists; and Ms Elizabeth Lyons, a counselling psychologist.  This evidence is generally not contested.  Having regard to this evidence, I make the findings set out in [13]–[15] below, on the balance of probabilities.

13. Mr Carroll suffered from ankylosing spondylitis from no later than 1996.  He also suffered from a mental health condition from no later than 2000.  Each condition caused him an impairment for the purposes of the Impairment Tables.  Each condition was fully diagnosed, fully treated and fully stabilised, and was likely to persist for more than two years—in fact, each persisted for at least that long.  Each impairment was likely to persist for more than two years—in fact, each persisted for at least that long.  Accordingly, an impairment rating can be assigned to Mr Carroll’s impairments.

14. The evidence is consistent with the application of the descriptors in Table 4 (about spinal function) corresponding to an impairment rating of 20.  Accordingly, I assign Mr Carroll’s ankylosing spondylitis an impairment rating of 20 under Table 4.  The evidence is consistent with the application of the descriptors in Table 5 (about mental health function) corresponding to an impairment rating of 20.  Accordingly, I assign Mr Carroll’s mental health condition an impairment rating of 20 under Table 5.

15. Each of Mr Carroll’s impairments was a severe impairment for the purposes of s 94(3B); each was of itself sufficient to prevent him from working 15 hours or more a week independently of a program of support within the next 2 years; and each was of itself sufficient to prevent him from undertaking a training activity during the next 2 years. Accordingly, because of s 94(2), he had a continuing inability to work because of his impairments from no later than 1996 (for the ankylosing spondylitis) and no later than 2000 (for the mental health condition).

16. Mr Carroll does not dispute that he had a continuing inability to work before he became an Australian resident. But he argues that he did not satisfy s 94(1)(c) at the time that he became an Australian resident. He says that his conditions were both in remission for a period, including the period leading up to him being granted a permanent visa. That may be true: it is possible that he did not satisfy s 94(1)(c) at the time that he became an Australian resident, and it is possible that he later satisfied s 94(1)(c) during the relevant period. But to satisfy s 94(1)(e)(i)—during the relevant period, or at any time—Mr Carroll must have been an Australian resident at the time when he first satisfied s 94(1)(c). As Drummond J of the Federal Court explained in Secretary, Department of Family and Community Services v Michael:

    It is plain that [s 94(1)(e)] was intended by Parliament to ensure that a non-Australian resident who enters Australia with an impairment that is sufficient to satisfy s 94(1)(c)(i) will not be entitled to a disability support pension until the person has resided in Australia for the substantial period of time sufficient to amount to “10 years qualifying Australian residence” within s 94(1)(e)(ii) (unless the person, though a non-Australian resident at the time, contracted that impairment while the dependent child of an Australian resident parent and subsequently entered Australia while still so dependent: see s 94(1)(e)(iii)).

    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.[5]

    [5] (2001) 116 FCR 500 at 501 [4]–[5] per Drummond J. See also at 508 [27] per Kiefel and Dowsett JJ.

17. I have found that Mr Carroll had a continuing inability to work at least ten years before he became an Australian resident. He was not an Australian resident at the time when he first satisfied s 94(1)(c).

18. Because of my findings about Mr Carroll’s continuing inability to work from 1996 and from 2000, I do not need to consider whether Mr Carroll satisfied s 94(1)(c) and other paragraphs of s 94(1) of the SS Act during the relevant period in 2014.

    Conclusion

19. Mr Carroll was not an Australian resident at the time when he first satisfied s 94(1)(c) of the SS Act, so he can never satisfy s 94(1)(e)(i). He can also never satisfy s 94(1)(e)(iii). He will satisfy s 94(1)(e)(ii) if he ever has ten years qualifying Australian residence.[6] But, he did not satisfy s 94(1)(e)(ii) during the relevant period. As he did not satisfy s 94(1)(e) during the relevant period, he does not qualify for the DSP.

    [6] See s 7(5) of the SS Act, quoted at [4] above.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

................................[sgd]........................................

Associate

Dated 17 December 2015

Date of hearing	27 November 2015
Applicant	In person
Counsel for the Respondent	Ms Rohina Sebastian
Solicitors for the Respondent	Legal Services Group, Department of Human Services