Fahri and Secretary, Department of Employment and Workplace Relations

[2006] AATA 779

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL          № V2006/233

GENERAL  ADMINISTRATIVE DIVISION

Re:           KEMAL FAHRI

Applicant

And:         SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Dr R. McRae, Member

Date:13 September 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY ‑ disability support pension ‑ neck pain ‑ depression ‑ portability provisions ‑ prolonged overseas travel ‑ continuing inability to work ‑ International agreement

Social Security Act 1991

Social Security (International Agreements) Act 1999

Re Bourboulas and Secretary, Department of Social Security (AAT 12045, 23 July 1997)

Re Purdon and Comcare (AAT 12429, 11 November 1997)

Re Secretary, Department of Family and Community Services and Goncalves [2004] AATA 4

REASONS FOR DECISION

13 September 2006   Dr R. McRae, Member

1.      Mr Kemal Fahri (the Applicant) seeks a review of a Social Security Appeals Tribunal decision dated 7 March 2006.  The SSAT affirmed a decision of a Centrelink officer that the Applicant was entitled to payment of the disability support pension (DSP) for 13 weeks while he was overseas.  Centrelink acts as agent for the respondent.

2.      The issue for the Tribunal is whether the Applicant is entitled to the DSP beyond 13 weeks according to the requirements of the Social Security Act 1991 (the Act).  The Tribunal’s decision is that the Applicant is not entitled to the DSP beyond 13 weeks or for any unlimited period.  

3.      The Applicant remains overseas.  He was represented by a friend, Mr C. Sarian, who is familiar with the Applicant’s circumstances and language.  Mr Sarian advised the Tribunal that he had the Applicant’s authority to represent him, and that he had done so at previous appeals.  Arrangements for telephone communication with the Applicant with the assistance of a trained interpreter were declined.  Mr Sarian advised the Tribunal he had not contemplated such communication, and considered it would add nothing to the appeal.  The Tribunal concurred with the Applicant’s representative, and advised the circumstances would be recorded. 

BACKGROUND

4.      The Applicant is a fifty-one year old man who migrated from Cyprus to Melbourne in 1977.  He completed primary school in Cyprus.  He is able to read and write in Turkish.  He has been a factory worker with several employers in Melbourne.  An episode of employment with his local Council resulted in his sustaining a back injury in 1983 making him eligible for workers' compensation.  He has made several return visits to Cyprus, including one to get married when he was aged 25.  He remained in Melbourne from 1990 and resided with his parents.  He separated from his Cypriot wife within a year of marriage because she did not want to stay in Australia. 

5.      The Applicant has received DSP since 9 June 2005 due to chronic neck pain and depression. 

6.      On 8 August 2005, Mr Sarian contacted Centrelink regarding the Applicant’s DSP entitlements associated with overseas travel (T14).  In particular, regarding the effect of an agreement between Cyprus and Australia on Centrelink payments. 

7.      On 19 August 2005 the Applicant advised Centrelink that he planned to travel to Cyprus on 2 September 2005 for an unknown duration in excess of one year (T15).  Centrelink gave the Applicant written advice on 19 August 2005 that he was eligible for DSP for only 13 weeks, until 2 December 2005, if he remained overseas (T16).  The Applicant departed Australia for Cyprus on 2 September 2005.  Under an agreement between Cyprus and Australia payments can only continue after 13 weeks if a person is severely disabled.  On 22 September 2005 Centrelink decided the Applicant could not be considered severely disabled for social security purposes (T17).  DSP payments ceased on 2 December 2005. 

APPLICANT’S SUBMISSION

8.      Mr Sarian submitted that the Applicant was severely disabled as he had received a superannuation payout related to being totally and permanently disabled.  He stated that Centrelink and the SSAT had given inadequate weight to the recent report of Mr E. Kleynhans, psychologist, dated 6 June 2006 (Exhibit A1), which advised that … he [the Applicant] needed to be on DSP for at least 5 years.  Mr Sarian submitted that the Applicant believed there was an arrangement for payment of DSP with Cyprus and had been advised that payment would be ongoing.  The Applicant did not claim to be terminally ill. 

9.      The Respondent contends the Applicant is only entitled to the DSP for 13 weeks following departure from Australia according to the requirements of the Act, as he remained overseas.

CONSIDERATIONS

10.Section 1211 of the Act provides that:

If the Social Security (International Agreements) Act 1999 [the International Agreements Act] applies to the payment of a social security payment to a person, this Part [of the Act] does not apply to the payment to the person. 

11.Section 3(1) of the International Agreements Act provides that:

Unless a contrary intention appears, an expression that is used in the Social Security Act 1991 has the same meaning, when used in this Act, as in the Social Security Act 1991.

12.Section 11 of the International Agreements Act provides that:

A social security payment payable under a scheduled international social security agreement is not payable to a person for a period when the person is outside Australia unless the agreement provides that the pension or allowance is payable outside Australia. 

13.     Schedule 11 of the International Agreements Act relates to a social security agreement with the Republic of Cyprus.  Article 2 provides that:

1.Subject to paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any laws that subsequently amend, supplement or replace 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:

…

(ii)     disability support pension for the severely disabled;

…

2.Notwithstanding the provisions of paragraph 1, neither the legislation of Australia nor the legislation of Cyprus shall include any laws made at any time for the purpose of giving effect to any agreement on Social Security.

…

14.Article 3 of the International Agreements provides that:

This Agreement shall apply to any person who:

(a)       is or has been an Australian resident; or

(b)       is or has been subject to the legislation of Cyprus…

15.Article 6(1) of the International Agreements Act provides that:

Where a person would be qualified under the legislation of Australia or by virtue of this Agreement for a benefit except for not being an Australian resident and in Australia on the date on which the claim for that benefit is lodged, but:

(a)is an Australian resident or residing in the territory of Cyprus …; and

(b)is in Australia, or the territory of Cyprus …,

that person shall be deemed, for the purposes of lodging that claim, to be an Australian resident and in Australia on that date. 

16.     Section 1217(1) of the Act with the associated Table provides for the maximum portability period for social security payments.  Item 3 of the Table provides that the maximum portability period for DSP is 13 weeks; this Item also provides reference to s 1218AA of the Act. 

17.Section 1218AA(1) of the Act provides that:

The Secretary may determine that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

(a)       the person is severely disabled (see subsection 23(4B)); and

(b)       the person is receiving disability support pension; and

(c)       the person is terminally ill; and

(d)       the person's absence from Australia is or will be permanent; and

(e)       the purpose of the person's absence is:

(i)to be with or near a family member of the person (see subsection 23(14)); or

(ii)to return to the person's country of origin. (emphasis added)

18.     Section 23(4B) of the Act defines severely disabled for the purposes of the Act (and thus also for purposes of the International Agreements Act) as:

…a person is severely disabled if:

(a)a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

(i)to work for at least the next 2 years; and

(ii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program… (emphasis added) 

…

FINDINGS

19.     The Tribunal found no evidence of advice from Centrelink that DSP would be paid permanently to the Applicant if he departed Australia for more than 13 weeks.  In fairness, the Tribunal acknowledges that the Applicant and/or his representative may have obtained such an impression.  There was evidence that Centrelink advised the Applicant in writing that payments would cease on 2 December 2005 (T16). 

20.     Mr Sarian did not provide any written evidence relating to the payout of any superannuation to the Applicant, or of the basis upon which any such payment may have been made, or the definition of relevant terms in that context. 

21.     There is a Social Security arrangement between Australia and the Republic of Cyprus.  However, there is no express ability in the arrangement for the DSP to be paid for an unlimited period to an entitled person while residing in Cyprus per se. 

22.     The Tribunal notes that the Applicant achieved entitlement to DSP with the lowest possible impairment score.  There is no requirement to be severely disabled in order to receive the DSP.  Consistent with Re Bourboulas and Secretary, Department of Social Security (AAT 12045, 23 July 1997), an entitlement to DSP does not imply a state of being severely disabled.  The Act requires that to be severely disabled the Applicant’s impairment must cause him to be totally unable to work for at least two years and unable to benefit within two years from retraining or rehabilitation towards further employment.  This is a higher standard than that required for DSP entitlement. 

23.     There is some tension between the Act and the International Agreements Act with respect to the term severely disabled. The definition is identical in both Acts: pursuant to s 3(1) of the International Agreements Act, there is no evidence of contrary intention related to the term. Despite that, the Table associated with s 1217 of the Act indicates a person receiving DSP may have any absence with a maximum portability period of 13 weeks: the requirement is the receipt of DSP. Meanwhile, Article 2 of Schedule 11 of the International Agreements Act refers to DSP for the severely disabled rather than DSP (that is, the unqualified term as in the Table in the Act).  Interpretation could lead to the inference that DSP in Cyprus is only available to recipients who are severely disabled, implying that those receiving the DSP are severely disabled through qualification for DSP entitlement. However, Paragraph 2 of Article 2 resolves the tension by stating that the dominant act is the Social Security Act 1991.  Thus the relevant conditions are those in the Table associated with s 1217 of the Act, in particular the receipt of DSP. 

24.     In Re Secretary, Department of Family and Community Services and Goncalves [2004] AATA 4 the Tribunal applied the Departmental policy of an ability to perform some type of work for eight hours per week. In this case, all of the Applicant’s medical assessments indicate he is currently able to work at least 8 hours per week or to retrain for some work for at least 8 hours per week (T6, T12, T24). The report of Dr N. Pastor dated 14 July 2005 (T12) is sufficiently recent and consistent with earlier assessments regarding the Applicant’s ability to participate in alternative part time light duty work. 

25.     There is evidence that Mr Kleynhans, whom the Applicant had consulted, supported travel to Cyprus.  But there is no evidence this was a component of a particular course of prescribed or ongoing treatment, nor was it undertaken with the oversight of a medical practitioner.

26.     The Tribunal acknowledges that Mr Kleynhans’ 6 June 2006 (Exhibit A1) addendum to his report is current.  However, there is no evidence that Mr Kleynhans has a particular expertise in matters related to portability of DSP to Cyprus.  In June 1999 Dr P. Kornan, psychiatrist, determined the Applicant had a two per cent primary psychiatric impairment (T24 p.130).  There is no evidence of alteration of the psychiatric impairment, nor of psychiatric treatment.  Consistent with Re Purdon and Comcare (AAT 12429, 11 November 1997), the Tribunal prefers the evidence of Dr Kornan.

27.     Section 1218AA of the Act contains conjunctive provisions, all of which must be met.  The Applicant conceded he has no terminal illness. 

CONCLUSION

28.     The Applicant is entitled to receive the DSP according to the provisions of the Act. 

29.     The Applicant has enjoyed the provisions of the Act related to the maximum allowable portability period following his personal decision to travel to Cyprus. 

30.     The Applicant does not satisfy s 23(4B) of the Act in that he is not totally unable to work for the next 2 years, and is therefore not severely disabled for the purposes of the Act. 

31.     Therefore, the Applicant does not satisfy s 1218AA(1)(a) of the Act.  This means the Applicant is not entitled to an unlimited portability period for the DSP. 

32.     Although it is not necessary to consider it, the Tribunal also notes the Applicant does not satisfy s 12218AA(1)(c) of the Act.  There is insufficient evidence upon which to base a decision related to s 12218AA(1)(d) of the Act.  However, this is of no consequence.  Given the conjunctive nature of s 1218AA of the Act, non-satisfaction of any one element is fatal. 

33.     The Tribunal concludes that the Applicant is not entitled to the DSP beyond 2 December 2005. 

DECISION

34.     Accordingly, the decision of the Respondent to provide DSP payment only up to 2 December 2005 was the correct and preferable decision and the Tribunal affirms that decision.

I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision of:

Dr R. McRae, Member

(sgd)     Lydia Zozula

Associate

Date of Hearing:  24 July 2006

Date of Decision:  13 September 2006

Advocate for the Applicant:               Mr C. Sarian

Advocate for the Respondent:           Ms H. Weston, Phillips Fox