Debbie Chambers and Secretary, Department of Social Services

Case [2014] AATA 94

[2014] AATA 94

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/1046

Re

Debbie Chambers

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Dr P McDermott RFD, Senior Member
Date 25 February 2014
Place Brisbane

The Tribunal affirms the decision under review.

.........................Sgd............................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Applicant is New Zealand citizen - Whether applicant ‘severely disabled’ in order to qualify for disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant did not participate in Program of Support – Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94

Social Security (Administration) Act 1999 (Cth) ss 13, 14, 42, Sch 2 cls 3, 4

Social Security (International Agreements) Act 1999 (Cth) Sch 3 art 1.1, Sch 3 art 5.1, Sch 3

art 2.2

CASES

Tey and Secretary, Department of Social Services [2013] AATA 753

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

Dr P McDermott RFD, Senior Member

25 February 2014

INTRODUCTION

  1. I have to determine whether Mrs D Chambers (the applicant) is entitled to disability support pension (DSP).

    PRIOR DECISIONS

  2. On 28 May 2012 the applicant lodged a claim for DSP. On 10 July 2012 this claim was rejected. On 2 January 2013 an authorised review officer affirmed the decision to reject the claim. On 7 February 2013 the Social Security Appeals Tribunal (SSAT) also affirmed the decision to reject the claim. On 6 March 2013 the applicant made an application to this Tribunal for review of the decision to reject the claim for DSP.

    RELEVANT LEGISLATION

  3. The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) and the Social Security (International Agreements) Act 1999 (Cth) (“the Agreements Act”).

    ELIGIBILITY FOR DISABILITY SUPPORT PENSION

  4. The applicant is a New Zealand citizen who remains in Australia under a visa subclass 444 which is neither a permanent visa nor a protected special category visa. The applicant does not qualify as an Australian resident under the Act because s 7(2) of the Act defines an 'Australian resident' as an Australian citizen or the holder of a permanent visa or protected special category visa. As the applicant is not an Australian resident she does not meet the residency requirement of s 94(1)(e) of the Act which has to be satisfied in order to be qualified to receive DSP. However, New Zealand citizens may qualify for DSP under Sch 3 of the Agreements Act.

  5. Article 5.1 of Sch 3 of the Agreements Act provides that a New Zealand citizen who is not the holder of an Australian permanent visa but who is lawfully residing in Australia is an Australian resident for the purposes of the Australian social security law.…

Details
AGLC
Debbie Chambers and Secretary, Department of Social Services [2014] AATA 94
Case
[2014] AATA 94
Decision Date

CaseChat Overview and Summary

Debbie Chambers, a New Zealand citizen residing in Australia, sought a review of the rejection of her claim for a Disability Support Pension (DSP) by the Social Security Appeals Tribunal (SSAT). The case involved determining whether Ms Chambers qualified for DSP under the Social Security Act 1991 (Cth) and related legislation, given her immigration status and disability status.

The primary legal issues were whether Ms Chambers was 'severely disabled' as defined by Schedule 3 of the Social Security (International Agreements) Act 1999 (Cth), and whether she met the specific criteria of having an impairment rating of at least 20 points and a continuing inability to work. Given her non-resident status, the court needed to determine if she was eligible under the special provisions for New Zealand citizens.

The Tribunal found that Ms Chambers did not meet the criteria for DSP. Firstly, the Tribunal concluded that she did not have a physical, intellectual, or psychiatric impairment that rendered her totally unable to work or benefit from a rehabilitation program. Secondly, there was insufficient evidence to show she had an impairment rating of 20 points. Lastly, she did not participate in a program of support, which further undermined her claim. The Tribunal thus affirmed the earlier decisions rejecting her DSP claim.

In conclusion, the Tribunal upheld the rejection of Ms Chambers' DSP claim, finding that she did not meet the eligibility requirements under the applicable legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have to determine whether Mrs D Chambers (the applicant) is entitled to disability support pension (DSP).PRIOR DECISIONS On 28 May 2012 the applicant lodged a claim for DSP. On 10 July 2012 this claim was rejected. On 2 January 2013 an authorised review officer affirmed the decision to reject the claim. On 7 February 2013 the Social Security Appeals Tribunal (SSAT) also affirmed the decision to reject the claim. On 6 March 2013 the applicant made an application to this Tribunal for review of the decision to reject the claim for DSP.RELEVANT LEGISLATION The legislation that I have to administer is the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) and the Social Security (International Agreements) Act 1999 (Cth) (“the Agreements Act”). ELIGIBILITY FOR DISABILITY SUPPORT PENSION The applicant is a New Zealand citizen who remains in Australia under a visa subclass 444 which is neither a permanent visa nor a protected special category visa. The applicant does not qualify as an Australian resident under the Act because s 7(2) of the Act defines an 'Australian resident' as an Australian citizen or the holder of a permanent visa or protected special category visa. As the applicant is not an Australian resident she does not meet the residency requirement of s 94(1)(e) of the Act which has to be satisfied in order to be qualified to receive DSP. However, New Zealand citizens may qualify for DSP under Sch 3 of the Agreements Act. Article 5.1 of Sch 3 of the Agreements Act provides that a New Zealand citizen who is not the holder of an Australian permanent visa but who is lawfully residing in Australia is an Australian resident for the purposes of the Australian social security law. The applicant is a New Zealand citizen lawfully residing in Australia and therefore is an Australian resident for the purposes of art 5.1 of Sch 3 of the Agreements Act. The applicant will therefore qualify for DSP providing that she satisfies s 94 of the Act with the exception of the residency requirement in s 94(1)(e) of the Act, and art 2 of Sch 3 of the Agreements Act. Article 2.2 of Sch 3 of the Agreements Act provides that New Zealand citizens must be 'severely disabled' before they qualify for DSP. Article 1.1 of Sch 3 of the Agreements Act defines a severely disabled person as one who:(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:(aa) to work for at least the next 2 years; and(bb)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or(ii) is permanently blind; Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have:·a physical, intellectual or psychiatric impairment (section 94(1)(a) of the Act);·an impairment rating of at least 20 points (section 94(1)(b) of the Act); and·a continuing inability to work (section 94(1)(c) of the Act).

Ratio Decidendi

Legal Principle Established

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