Correos and Secretary, Department of Social Services (Social services second review)
[2016] AATA 617
•19 August 2016
Correos and Secretary, Department of Social Services (Social services second review) [2016] AATA 617 (19 August 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1170
Re
Leoncito Correos
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member Taglieri
Date 19 August 2016 Place Hobart The decision under review is affirmed.
........................................................................
Ms S Taglieri, Member
CATCHWORDS
Disability Support Pension – whether qualified - impairment points applicable - absence of evidence relating to demonstrated continuing inability to work - International agreement not applicable to deem satisfaction of residency requirement.
LEGISLATION
Social Security Act 1991
Social Security (International Agreements) Act 1999
CASES
McDonald v Director-General of Social Security (1984) 1 FCR 354 and Re Gallifuoco and Secretary, Department of Social Security (1988) 15 ALD 160
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member Taglieri
At the age of 63 years, Mr Correos applied for a Disability Support Pension (“DSP”) on 9 July 2015.
The Respondent rejected the claim, citing essentially that the qualification requirements of the Social Security Act 1991 (“the SS Act”) were not satisfied.
In this application Mr Correos has applied to review the rejection of his claim by the Respondent and subsequent affirmation of the rejection by the Respondent’s Authorised Review Officer and the Social Services Division of this Tribunal.
ISSUES
There is one ultimate issue to be determined in this review. Namely, whether the Respondent’s rejection of the Mr Correos’ DSP claim was the correct or preferable decision.
In turn, the ultimate issue requires consideration of the evidence before the Tribunal and determination of whether it established that the qualification requirements are satisfied, such that the DSP ought to be granted.
THE LAW
To qualify for DSP, in so far as is relevant on the facts of this case, Mr Correos had to:
(a)Have a physical, intellectual or psychiatric impairment; and
(b)Have an impairment equating to 20 points or more under the Impairment Tables and Rules under section 26 of the SS Act as applied from 1 January 2012; and
(c)Have a continuing inability to work (“CITW”) or be participating in a supported wage system administered by the Health Department, of which notice has been given to the Respondent; and
(d)Be an Australian resident.[1]
[1] Section 94(1)(a) to(e) of SS Act
THE AVAILABLE EVIDENCE AND CONTENTIONS
At the hearing, the Tribunal received into evidence by consent the T documents filed by the Respondent and comprising of 87 pages in total.
Mr Correos also made statements about his medical conditions of Polycythaemia Rubra Vera and Cerebrovascular disorder, both which were conceded by the Respondent to be permanent medical conditions causing functional impairment within the meaning of the applicable law.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).
Upon specific questioning of Mr Correos about whether he agreed with the impairment points assigned in the Job Capacity Assessment[3] (“JCA”), he said that the 5 points assigned under Table 1 and 2 were possibly correct and that he agreed with the assignment of 5 points under Table 3, giving a total of 15 impairment points for the permanent conditions.
[3] T8 of T Documents, pages 58 to 64
His statements to the Tribunal and contentions were that despite the impairments being only 15 points and not 20, he personally considered that in view of what he felt and experienced, he ought to receive DSP.
I sought to explore this with Mr Correos and invited him to identify by reference to the medical evidence[4], how I could be satisfied that the functional impacts of the medical conditions were greater than that assessed at 15 points combined.
[4] Specifically the reports of Dr Wickramasinghe and Kumar, at pages 9-19, 57 and 65-66 of the T Documents
Mr Correos repeatedly referred to his personal experience and not the type of information that I am required to consider under the relevant law, being information provided by health professionals, medical or work capacity information and reported symptoms if corroborated by evidence of the nature identified in Table 1, Table 2 and Table 3[5].
[5] Part 1 of the Determination , paragraphs 7 and 8
For the purposes of this decision, I have taken into account all the T Documents in evidence and the statement of Mr Correos to the extent I am permitted by law.
CONSIDERATION
The Tribunal is satisfied that Mr Correos has permanent impairment from his permanent medical conditions of Polycythaemia Rubra Vera and Cerebrovascular disorder.
I accept that Mr Correos suffers mild functional impacts within the descriptors in the applicable Impairment Tables, being Tables 1, 2 and 3. The most detailed evidence of the functional impacts are provided by the JCA Report, which Mr Correos did not seriously dispute. His evidence of functional impact was consistent with that reported in the JCA. The medical reports of Dr Wickramasinghe and Dr Kumar did not address functional impacts in any useful way.
The evidence fails to satisfy me to the requisite level of persuasion, that the assignment of 15 total impairment points is incorrect. There is simply insufficient probative evidence to enable findings that allow 20 points to be assigned when the evidence is analysed by reference to the criteria in Tables 1, 2 and 3. For this reason, the mandatory qualification requirement of section 94(1)(b) is not satisfied[6].
[6] McDonald v Director-General of Social Security (1984) 1 FCR 354 and Re Gallifuoco and Secretary, Department of Social Security (1988) 15 ALD 160
The result is that Mr Correos’ application for review must fail.
Although not strictly necessary given the finding above, I will for completeness address the remaining qualification requirements referred to in paragraph 6 of these reasons. Namely, whether Mr Correos has satisfied the CITW and residence requirements.
Mr Correos gave evidence that he had not worked in the open labour market since September 2012, when he resigned from his employment with Travelodge in NSW.
He did not explain why he resigned, but stated that after his CVA event in 2013, he had been unable to work.
Despite the statements referred to in paragraphs 19 and 20, Mr Correos also said at the hearing that since making the DSP claim he had undertaken some unpaid work in bookkeeping for a friend, who paid an allowance to cover his medical expenses.
The position of a bookkeeper is work that would be consistent with the ability of a person with mild functional impacts as described by Mr Correos and referred to in the JCA’s report. It is compatible with the category of light semi-skilled work which the JCA report identified as suitable work for 8 to 14 hours a week.[7]
[7] Page 62 of T Documents
Mr Correos stated he performed maybe less than 8 hours a week bookkeeping for the friend, but also said that he had not received any Social Security payments since stopping work in 2012.
CITW is satisfied only if:
a) The impairment itself prevents him from doing any work independently of a program of support within 2 years; and
b) The impairment prevents him from undertaking a training activity during the next 2 years, or if it does not prevent him from doing so, such activity because of the impairment makes it unlikely he will be able to do any work independently of a program of support within 2 years.[8]
[8] 94(2)(a) and (b) of the SS Act
The evidence demonstrates that Mr Correos is doing some bookkeeping duties and this tends to reinforce the strength of the JCA report that there is baseline work capacity notwithstanding the existing mild functional impairment.
Mr Correos conceded that he had not participated in a program of support for 18 months as required to qualify for DSP. Although he stated that he had not been asked to do so, that is not a relevant consideration because the requirement of participation is mandatory.[9]
[9] Section 94(2)(aa) and Part 2 of the Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension)- Determination 2011
The inescapable conclusion is that Mr Correos did not at the relevant time or now satisfy the essential requirements of CITW and so this is further reason why his application for review must fail.
Finally, although Mr Correos sought to rely upon the International Agreement in force between Australia and New Zealand to meet the residency requirement, he is only assisted by the Agreement in circumstances where he is severely disabled.[10]
[10] By virtue of Social Security (International Agreements) Act 1999, section 5 and schedule 3 Article 2, paragraph 2
The meaning of severely disabled is expressly provided for.[11] Essentially it requires a person to be totally unable to work for the next 2 years and be unable to benefit from the participation in a program of assistance or rehabilitation program in 2 years. Mr Correos provided no evidence that these requirements were satisfied in his case. Further, the evidence contained in the JCA report was expressly to contrary effect.
[11] Article 1 of schedule 3 Social Security (International Agreements) Act 1999
As such, the Tribunal is not satisfied that the International Agreement provisions enable Mr Correos to meet the residency requirement of section 94 of the SS Act.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member)
........................................................................
Administrative Assistant
Dated
Date of hearing 16 August 2016 Applicant Self-represented (appearance by phone) Solicitor for the Respondent Ms Belinda Lewis, Department of Social Services
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Standing
-
Statutory Construction
-
Procedural Fairness
0
1
2