Dodd and Secretary, Department of Family and Community Services

[2005] AATA 299

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 299

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1307

GENERAL ADMINISTRATIVE DIVISION		)
Re		NATALIE DODD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date6 April 2005

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell  Senior Member

SOCIAL SECURITY – Disability Support Pension – Applicant Not Eligible – Residence Requirements Not Met – Applicant Has Not Been Resident for 10 years – Applicant not of Working Age.

Social Security Act 1991 – s 7(2), s 7(5), s 94(1)(a),(b),(c) and (e)

REASONS FOR DECISION

6 April 2005 Ms N Bell, Senior Member

1.      Natalie Dodd is a young woman of 21 affected by a range of physical and intellectual impairments that severely disable her.  She was born in New Zealand and granted an Australian citizenship by descent – her father is an Australian citizen.

2.      In New Zealand, at 16, she was granted an invalidity benefit.  In 2003, Natalie came to Australia with her family and in March 2004 claimed Disability Support Pension.  The claim was rejected by Centrelink on the basis that she did not meet the Australian residence requirements for the payment.  There is no dispute that Natalie meets the other, substantive, requirements for Disability Support Pension. Indeed an affidavit tended by her parents, detailing the extent of her disabilities and their profound effects on Natalie and her family, leaves no doubt as to seriousness of her condition.

3.      The only issue for me to determine is whether Natalie meets the requirements, in the Social Security Act 1991 (“the Act”), for Australian residents. If she does not, then Disability Support Pension cannot be paid to her.

4. Among other, more substantive qualifications for Disability Support Pension set out in section 94(1)(a), (b) and (c), section 94(1)(e) of the Act requires:

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

(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.

5.      There is no dispute that Natalie was not an Australian resident when she first satisfied the substantive requirements for qualification.

6. Nor does Natalie have ten years qualifying Australian residence. In this respect, section 7(2) and (5) of the Act require residence in Australia for a ten-year period in addition to citizenship or being a visa holder. Natalie first arrived in Australia in 2003. Natalie does not qualify for a residence exemption as she is not a refugee.

7.      Although Natalie satisfies paragraph (A) of section 94(1)(e)(iii), she does not satisfy paragraph (B) because when her conditions first prevented her from working she, and her parents were living in New Zealand.

8. The Act contains no power to exercise discretion in relation to the Australian residence requirements. On these bases Natalie’s claim must be rejected.

9.      There is a Reciprocal Social Security Agreement (“the Agreement”) between Australia and New Zealand which applies to Natalie.

10.     Article 12 of the Agreement sets out the minimum residency requirement for a person to be entitled to a benefit under the Agreement (an aggregate of more than ten years) and provides that periods of “working age residence in New Zealand may be counted as Australian residence for the purpose of meeting qualifying periods in Australian social security law”.

11.     However, article 5 of the Agreement defines “working age residence” as residence between the age 20 and 65 years of age.  At the time of her claim Natalie was not age 20 and so had no period of working age residence in either country.  It follows that the only period of residence she may bring to her claim is the four months Australian residence she had at the date of her claim.  This does not meet the requirements set out in the Agreement.  I understand that Natalie’s mother has made enquiries of authorities in New Zealand as to the availability to Natalie of New Zealand payment under the Agreement.  However Mrs Dodd has been advised that there is currently no payment available in Natalie’s case.

12.     I understand that Mrs Dodd is gathering the information required to make a claim for special benefit on Natalie’s behalf.

13.     It is more than unfortunate that Natalie cannot access the income support for which, in all substantive respect, she is so eligible.  I sincerely hope that she is successful in her claim for special benefit.

decision

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ......................[Linda Blue].................................
  Associate

Date of Hearing  4 March 2005
Date of Decision  6 April 2005
Solicitor for the Respondent     Ms J Green