Djoneski and Secretary, Department of Family and Community Servic Es

[2003] AATA 832

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 832

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/629

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VANCO DJONESKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date27 August 2003

Place            Sydney

Decision The decision under review is affirmed.

……………………….

Dr J D Campbell,
  Member

CATCHWORDS

SOCIAL SECURITY - New Zealand resident - blindness - Australian resident - claim for disability support pension - issue of date of commencement of legal blindness

LEGISLATION

Social Security Act 1991 sections 7(2), 7(6), 23(4B), 94, 95

Social Security (International Agreements) Act 1999 Schedule 3, Articles 2 and 12

AUTHORITIES

Re Djoneski and Secretary, Department of Family and Community Services [2003] AATA 28

REASONS FOR DECISION

27 August 2003   Dr J D Campbell, Member            

1.      In this application, Mr Vanco Djoneski (“the Applicant”) seeks a review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 21 March 2003, that affirmed the decision of an authorised review officer (“ARO”) dated 10 December 2002, who in turn had affirmed the decision of an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 7 August 2002, that rejected the Applicant’s claim for disability support pension (“DSP”), stating that the Applicant was not entitled to receive such payments as he did not meet the residence requirements.

2.      A hearing was held before the Tribunal on 17 July 2003 with an interpreter fluent in the Serbian language assisting the Tribunal.  The self-represented Applicant presented oral evidence.  The Respondent was represented by Ms Buckley, an advocate for the Centrelink Recovery Team.

3.The following material was placed into evidence before the Tribunal:

Exhibit No	Description	Date
T1-T26 pp1-96	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Four pages of material - Guide to Social Security Law DSP customers with less than 10 years residence
A2	Centrelink letter to Applicant	29 April 2002
A3	Centrelink letter to Applicant	4 February 2002
A4	Centrelink letter to Applicant	2 January 2002
A5	Work Reference	14 March 2000
R1	Respondent’s Statement of Facts and Contentions	9 July 2003
R2	Work and Income letter to Studylink Centre	17 September 2002
R3	Studylink letter to Centrelink	18 September 2002
R4	Studylink letter to Centrelink	19 September 2002
R5	Social Security Agreement between Australia and New Zealand

issues

4.      The relevant issues in this matter are whether the Applicant is qualified for DSP and entitled to payment of DSP in the light of his disability (blindness), the onset of that disability, his inability to work and his period of residence in Australia and New Zealand.

legislation

5.      The relevant legislation in this matter is the Social Security Act 1991 (“the Act”) and in particular sections 6(A), 7(2), 7(6), 23(4B), 94 and 95(1), and the Social Security (International Agreements) Act 1999, Schedule 3 (“the Agreement”), Articles 2 and 12.

background

6.      The Applicant lodged a claim for Disability Support Pension with the Respondent on 26 July 2002, in which he listed his disability as being blind, having been diagnosed with retinosa pigmentosa in October 2001 (T8).  The Applicant indicated that his blindness prevented him from driving a car all the time, often interfered with his ability to walk, use public transport, read, write and care for others, and sometimes made it difficult for him to lift, carry and operate everyday appliances, interact with others, attend work or other appointments, understand or follow instructions, sleep, manage his personal affairs and care for himself (T8, page 47).

7.      In a treating doctor’s report dated 24 July 2002 (T9), Dr Todorovic detailed the diagnosis and clinical features of the Applicant’s condition as:          

Diagnosis	Clinical Features
retinitis pigmentosa	diminished peripheral vision
	decreased visual acuity at night
	decreased visual acuity for two to three minutes when  going from a dark to a well lit area
	date of onset 2000

8.      Dr Todorovic considered that the Applicant was fit to return to full-time work under some conditions considering his impaired vision. Dr Todorovic considered that the Applicant’s work ability would be affected in the following ways (T9, page 60):

·absent or late for work one day at most per month;

·mobility would be constrained in some situations; and

·his lifting, carrying and moving of objects would be with greatly reduced speed, coordination and/or difficulty.

9. On 6 August 2002, a file note (T10) indicates that the Applicant’s claim was rejected under section 94 of the Act as he had insufficient residence. The Applicant was advised of this decision and the reason for it on 7 August 2002 (T11). In a new claim coding sheet (T14), the Applicant was deemed not to be severely disabled, yet severe disablement is said to have occurred in New Zealand.

10. In correspondence dated 12 November 2002 (T15), the Applicant stated that he had claimed the appropriate payment for disability and that Article 2 of the Agreement was relevant in deciding this matter. The Respondent, in affirming the earlier decision not to grant DSP, contended that, pursuant to Article 12(4) of the Agreement, the Applicant did not have ten years of residence between Australia and New Zealand and that there was no need to assess the Applicant’s severe disablement status, in view of his failure to meet the residency requirements (T17). The Applicant was advised of the review in a letter dated 19 November 2002 (T18).

11. In a further request for a review by an authorised review officer (“ARO”) dated 22 November 2002 (T19), the Applicant raised his earlier contention that Article 2 of the Agreement was relevant. On 10 December 2002, the ARO affirmed the earlier decision, and indicated that for DSP to be granted the Applicant must have ten years qualifying residence in Australia and New Zealand at the time he lodged a claim for DSP (T22).

12. In a further application for review to the SSAT, the Applicant again contended that Article 2 of the Agreement was relevant, and that there had been a failure to properly consider medical reports pertinent to his disability (T24). In relation to the latter issue, the SSAT clarified the Applicant’s position, with the Applicant stating the he had become permanently blind while an Australian resident, noting that there had been a significant deterioration in his vision in October 2001 while applying for a scholarship to attend Curtin University (T2, page 5). Further, the Applicant contended that Articles 2 and 12 of the Agreement created a situation which was contradictory. The SSAT, in affirming the earlier decision, concluded that the Applicant had not accumulated an aggregate of more than ten years of residence in Australia and/or New Zealand.

applicant’s evidence

13.     The Applicant informed the Tribunal that on 12 July 2002 he had visited Centrelink and submitted an application for assistance in the widest spectrum of possibility, bearing in mind his medical condition.  His application was rejected, in spite of what he wanted.  He considered that the fact that he had not been living in Australia for ten years was the easiest way to have his claim rejected.  He considered that the issue of being severely disabled was a relevant issue and was concerned that he had not been deemed severely disabled as noted on page 67 of the T documents.  The Applicant also considered that the SSAT were in error when deciding that his blindness had occurred prior to arrival in Australia.

14.     The Applicant told the Tribunal that he was born in Macedonia and migrated to New Zealand in September 1997. In New Zealand, the Applicant stated that he worked for a year as a test engineer with high voltage equipment.  At this time, he noticed a deterioration in his vision, and eventually he ceased his work with high voltage equipment.  The Applicant stated that he continued to hold a New Zealand drivers’ licence between 30 June 2000 and 30 June 2002, having passed the necessary vision tests to secure the licence from 30 June 2000.

15.     The Applicant told the Tribunal that he and his family (wife and two children, one aged less than 16 years and the other older than 16) moved to Australia in May 2001, settling first in Perth and then latter moving to Sydney. On arrival in Australia, he undertook some temporary work activity one day per week, but later he claimed his continuing inability to work commenced.

16.     In response to questions from the advocate for the Respondent, the Applicant stated that:

·     he saw Dr Clemett in September 1999, at which time he was driving a car. He cannot say for sure whether Dr Clemett suggested that he stop driving, but Dr Clemett certainly did not tell him to stop driving. Nevertheless the Applicant did state that he did stop driving a car in 2000;

·     Dr Clemett may have registered him with the New Zealand Society for the Blind, with the Applicant becoming aware of such fact by way of a letter from the Society;

·     he stopped work in March 2000 and that his then manager agreed with this decision because of the deterioration in his eyesight;

·     in 1999 he had applied for an invalid pension in New Zealand. He discussed the issue with the appropriate authority and was granted a community wage and later a sickness benefit;

·     he does receive a mobility allowance from Centrelink, and his wife a carer’s allowance.

medical evidence

17.     In a medical report dated 13 September 1999 (T26), Dr R Clemett, Associate Professor of Ophthalmology, having examined the Applicant, detailed the following:

·      the Applicant’s complaint was one of difficulty with peripheral vision at work, where he works with electrical appliances and computers;

·      the Applicant has visual acuity of 6/6 in each eye;

·      visual fields show extremely narrow fields of vision with only 5º left centrally and a tiny peripheral island of temporal vision in each eye;

·      this field loss is quite apparent as Mr Djoneski tries to walk around the room, he does so with great caution and some difficulty;

·      a family history of an affected brother;

·      a diagnosis of retinitis pigmentosa, probably of the dominantly inherited type, this being consistent with retention of good central vision at age 42;

·      the Applicant’s registration with the Royal NZ Foundation for the Blind;

·      the issue of work and workplace assessment is an issue which would be better examined by the Blind Foundations mobility officers; and

·      the Applicant has significantly diminished peripheral visual acuity and that he will have difficulty with mobility and will be unable to hold a driving licence.

18.     In a further letter to Mr Veale, Optometrist, dated 16 March 2001, Professor Clemett requested that the Applicant be tried with some low vision equipment (T4, page 11).

19.     In a letter of general advice dated 16 May 2001 (T6, page 14) Mr Veale, an optometrist, stated that the Applicant:

“…has retinitus [sic] pigmentosa and loss of peripheral visual field to approximately 20º.  He also has loss of visual acuity and manages when I last saw him approximately 6/36 in each eye”.

20.     In a letter dated 10 May 2002 (T5, page 13) Dr Gregory, a consultant opthamologist, stated:

“He suffers with retinitis pigmentosa and I understand he has one brother with a similar problem.

On examination I found him to have visual acuity of 6/6 partly right and left with a  small astigmatic correction but his visual field is markedly reduced as a result of his retinal dystrophy to approximately 3 degrees of central visual field. …”

other evidence

21.     In a letter dated 14 March 2000 (Exhibit A5), Mr Shimasaki, General Manager at Parkside Laboratories, detailed a work reference in relation to the Applicant in which he indicated that the Applicant had been employed by the company from 24 May 1999 to 17 March 2000.

22. In a decision dated 15 January 2003 on an earlier application for DSP dated 27 July 2001 (T25), the Administrative Appeals Tribunal held that it was more probable than not that the Applicant had first become permanently blind while in New Zealand and as such cannot qualify for DSP under section 95(1)(c)(i) of the Act (Re Djoneski and Secretary, Department of Family and Community Services [2003] AATA 28).

applicant’s submissions

23.     The Applicant contended that he did suffer from the disability of blindness and that the condition was more particularly assessed after his arrival in Australia from New Zealand.  In essence, the Applicant contended that his blindness disability did not commence until after his arrival in Australia.  In support of this contention, the Applicant argued that he had secured a three year driving licence in June 2000, having passed the necessary visual acuity tests in New Zealand and that he had continued to drive a car on occasions prior to coming to Australia in May 2001.

24. The Applicant also contended that his disability of blindness should be assessed in terms of severe disablement and that he be appropriately classified as being severely disabled. This, in his contention, would allow the Agreement to be relevant to his claim. Further, the Applicant, in noting Article 12 of the Agreement, contended that the intent of the two articles was contradictory.

respondent’s submissions

25. The Respondent contended that the Applicant did not satisfy the nominated criteria within section 95 of the Act in that:

·      he was medically assessed as meeting the criteria for blindness while a resident in New Zealand;

·      he ceased work while in New Zealand and received income support while studying in New Zealand;

·      he has resided in Australia for less than ten years;

·      he was not a refugee from New Zealand, and

·      he did not become an Australian resident while he was a child.

26. In relation to section 94 of the Act, the Respondent contended that the Applicant’s continuing inability to work commenced before he came to Australia, and before he became an Australian resident. As such, it is necessary for the Applicant to have accrued ten years qualifying Australian residence before becoming eligible under this section.

consideration and findings

27.     In this matter, the Tribunal has been particular in detailing the circumstances surrounding the Applicant’s disability and, further, has paid particular attention to the Applicant’s history of employment and the places of residence of the family.

28.     In addressing the Applicant’s period of residence in each relevant country, the Tribunal concludes that the Applicant and his family commenced residence in New Zealand on 29 September 1997 and arrived in Australia on 23 May 2001, where he and his family continue to reside.

29.     The Tribunal, in addressing the Applicant’s claim, notes the following legislative framework:

“Social Security Act 1991

95       Qualification for disability support pension—permanent blindness

95(1)   A person is qualified for a disability support pension if:

(a)      the person is permanently blind; and

(b)      the person has turned 16; and

(c)      the person:

(i) is an Australian resident at the time when the person first satisfies paragraph (a); or

(ii)      has 10 years qualifying Australian residence; or

(iia) 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 (a), 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.”

Schedule 1B—Tables for the assessment of work-related impairment for disability support pension

TABLE 15.     VISUAL FIELDS

It is usually necessary to seek ophthalmological advice for an accurate assessment under this Table.  A person meets the criteria for permanent blindness under section 95 of the Social Security Act if their field of vision is constricted to ten degrees or less of arc from central fixation in the better eye irrespective of corrected visual acuity…

23(4B) For the purposes of this Act, a person is severely disabled if:

(a)      …; or

(b)      the person is permanently blind.

94      Qualification for disability support pension

94(1)   A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person’s impairment is of 20 points or more under the Impairment Tables; and

(c)      one of the following applies:

(i)       the person has a continuing inability to work;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)      the person has turned 16; 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.”

“Social Security (International Agreements) Act 1999
Schedule 3—New Zealand

ARTICLE 2

Legislative Scope

1. Except as provided under paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, consolidates or replaces them:

(a) in relation to Australia: the Social Security Act 1991 in so far as the Act provides for, applies to or affects the following benefits:

(i)       age pension;

(ii)      disability support pension;

(iii) carer payment in respect of the partner of a person who is in receipt of a disability support pension; and

(b) in relation to New Zealand: the Social Security Act 1964 and the Social Welfare (Transitional Provisions) Act 1990 in so far as they provide for, apply to or affect the following benefits:

(i)       New Zealand superannuation;

(ii)      veteran’s pension; and

(iii)      invalid’s benefit.

2. For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid’s benefit shall be limited to cases where:

(a)      the person is severely disabled;

(b) the person was a resident of one of the Parties at the date of severe disablement; and

(c) the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.

ARTICLE 12

Totalisation for Australia

1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:

(a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the social security law of Australia for a benefit;

(b) a period of working age residence in Australia equal to or greater than the period identified in accordance with paragraph 3; and

(c)      a period of working age residence in New Zealand.

then:

That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the social security law of Australia.

2. Where a person’s period of working age residence in Australia and a period of working age residence in New Zealand coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this Article as a period as an Australian resident.

3. The minimum period of working age residence in Australia to be taken into account for the purposes of subparagraph 1(b) shall be as follows:

(a) for the purposes of an Australian benefit payable to a person residing outside Australia, the minimum period shall be one year of which at least 6 months must be continuous; but

(b) for the purposes of an Australian benefit payable to an Australian resident, there will be no minimum period.

4. No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand.

5. A claimant for an age pension must be at least 65 years of age to be able to obtain the benefit of this Article.”

30.     The Tribunal, in addressing the Applicant’s disability, namely retinitis pigmentosa, notes that the Applicant was subject to a consultation by Professor Clemett in September 1999 and that this consultation involved an assessment of both the Applicant’s history of difficulty with peripheral vision and his visual acuity and visual fields.  Professor Clemett found that the Applicant had visual acuity of 6/6 in each eye and that visual fields showed extremely narrow fields of vision with only 5º left centrally and a tiny peripheral island of temporary vision in each eye.

31.     The Tribunal also notes that at this time Professor Clemett observed that the field loss is quite apparent as Mr Djoneski tries to walk around the room, as he does so with great caution and some difficulty.  Further, it is evident that Professor Clemett registered the Applicant with the Royal NZ Foundation for the blind, leaving assessment of the work place environment with the mobility officers from that society.

32.     The Tribunal further notes that the Applicant worked with Parkside Laboratories from 24 May 1999 to 17 March 2000, after which the Applicant pursued further postgraduate studies at the University, while receiving a community wage and later a sickness benefit.

33.     The Tribunal also notes that the Applicant passed the necessary visual acuity tests for the renewal of his driving licence in June 2000, and while the Tribunal is unaware of the nature of such tests in New Zealand, the Tribunal is aware that the Applicant has a usual acuity of 6/6 in both eyes, which may account for the satisfactory completion of the test, which in turn perhaps highlights the nature of the tests undertaken.

34.     The Tribunal, in noting the letter of Mr Veale, optometrist, dated 16 May 2001 and his findings of the Applicant’s visual acuity being 6/36 in both eyes and a loss of peripheral visual field to approximately 20º, observes that such findings are inconsistent with the earlier findings of Professor Clemett of 13 September 1999 and the later findings contained in reports of E Ottoway of 29 August 2001 (T25, Exhibit A3) and Dr Gregory of 10 May 2002 (T5), both detailing a loss of peripheral visual fields to 3º, and the report of Dr Gregory detailing visual acuity of 6/6 in both eyes.

35. In addressing assessment of the Applicant’s disability of impaired vision, the Tribunal, noting Table 15 of the Schedule 1B Impairment Tables, concludes that the Applicant meets the criteria for permanent blindness for both sections 94 and 95 of the Act.

36.     In turning to the time of onset of the permanent blindness, the Tribunal is satisfied that it is more probable than not that the Applicant has been permanently blind since his assessment by Professor Clemett in September 1999.  In making such a finding, the Tribunal has noted the symptomatology detailed by Professor Clemett, his clinical findings, the Applicant’s subsequent work history and the correlative findings on examination in August 2001 and May 2002, both of which support the clinical findings of Professor Clemett.  The Tribunal, while noting again the report of Mr Veale and the Applicant’s ability to secure a New Zealand driver’s licence in June 2000, considers the report of Mr Veale to be anomalous in that both visual acuity and visual field assessments are inconsistent with assessments both before and after, while the driver’s licence issue is more a reflection of the visual testing undertaken during such an activity, and the knowledge or lack thereof by the tester of the Applicant’s visual impairment disability.

37.     The Tribunal, in concluding that the Applicant’s disability of permanent blindness commenced prior to his residence in Australia, further concludes that the Applicant’s continuing inability to work commenced prior to his residence in Australia, as exampled by his cessation of work in March 2000, his application for a New Zealand Social Security payment and his pursuit of further studies while supported by a community wage and later by sickness benefits.

38. The Tribunal further concludes that pursuant to section 23(4B) of the Act, the Applicant, for the purposes of the Act is severely disabled.

39. The Tribunal, in addressing the Agreement, notes that Article 2 restricts the legislative scope of the Agreement to apply to Australian social security law relating to disability support pension (para 1(ii)) if and only if the person is severely disabled (para 2). The Tribunal also notes that Article 12 permits an Australian resident, when the period as an Australian resident is less than the period required to qualify that person, to deem the period of working age residence in New Zealand as a period in which that person was an Australian resident, for the purposes of meeting any qualifying periods for that benefit set out in the Social Security law of Australia (paragraphs 1, 2, 3). Paragraph 4 of Article 12 restricts entitlement to claim a disability support pension under this agreement unless the person has accumulated an aggregate of more than ten years of residence in Australia and/or New Zealand.

40.     In assessing the Applicant’s residence history, it is clear to the Tribunal that he has significantly less than ten years of residence in Australia and New Zealand at the date of claim, having established residence in New Zealand in September 1997, and leaving to come to Australia in May 2001..

41. In summary, the effect of the Agreement as regards to disability support pension is to restrict such a pension to those that are severely disabled and have an aggregate of more than ten years of residence in Australia and New Zealand.

42. In addressing the Applicant’s claim under section 95 of the Act, the Tribunal, while concluding that the Applicant satisfies section 95(1)(a) and (b), finds that the Applicant does not satisfy the following:

(a)that he was an Australian resident at the time he become permanently blind (section 95(1)(c)(i)), in that he became permanently blind prior to arrival in Australia;

(b)that he has ten years qualifying residence (section 95(1)(c)(ii));

(c)that he has a qualifying residence exemption for a disability support pension (section 95(1)(c)(iia)); or

(d)that he was born outside Australia, and at the time of his permanent blindness, he was not an Australian resident, but was a dependent child of an Australian resident, and later becoming an Australian resident while a dependent child of an Australian resident (section 95(1)(c)(iii)).

43. The Tribunal concludes that the Applicant is not qualified for a disability support pension pursuant to section 95 of the Act.

44. In addressing section 94 of the Act, the Tribunal, in concluding that the Applicant satisfies section 94(1)(a), (b), (c), and (d) of the Act because of his permanent blindness, and his continuing inability to work, finds that the Applicant does not satisfy section 94(1)(e) in that:

(i)the Applicant was not an Australian resident at the time he had a continuing inability to work, as detailed earlier in this decision;

(ii)the Applicant does not have ten years qualifying residence or has a qualifying residence exemption for a disability support pension, as detailed earlier in this decision; and

(iii)the Applicant was not a dependent child of an Australian resident at the time of his continuing inability to work (section 94(1)(e)(iii)).

45. The Tribunal further concludes that the Applicant is not qualified for a disability support pension pursuant to section 94 of the Act.

determination

46.The Tribunal affirms the decision under review.          

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         C. Gregson
  Associate

Date/s of Hearing  17 July 2003
Date of Decision  27 August 2003
Applicant  Self-Represented        
Solicitor for the Respondent     Ms M Buckley