Fahri Goksu and Secretary, Department of Social Services

[2014] AATA 752

[2014] AATA  752

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1255
Re	Fahri Goksu
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	17 October 2014
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham (Senior Member)

CATCHWORDS

Social Security - overseas applicant - portability of DSP - capacity to perform work independently of program of support - decision under review affirmed

LEGISLATION

Social Security Act 1991 (the Act)

Administrative Appeals Tribunal At 1975

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

1. The applicant, Fahri Goksu seeks the review of a decision of Centrelink which determined that portability of his Disability Support Pension (DSP) was limited to a period of six weeks. This decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 3 March 2014.

2. Mr Goksu currently resides with his wife in Turkey and the hearing of his application for review was conducted via telephone link to Mr Goksu and his wife. Mr Sparkes appeared on behalf of the Secretary and tendered the T documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

3. The issue for the Tribunal to determine in these proceedings is whether Mr Goksu satisfies the requirements for indefinite DSP portability.

   BACKGROUND

4. Mr Goksu was formerly a resident of Australia and was granted DSP on 30 April 2013. On 31 July 2013 Mr Goksu advised Centrelink that he was planning to travel overseas to Turkey for an indefinite period.

5. A Job Capacity Assessment was undertaken in September 2013. In the report dated 10 September 2013 on the basis of medical evidence, the Assessor found that Mr Goksu’s spinal disorder and depression conditions were fully treated and fully stabilised and assessed a combined impairment rating of 35 points. Mr Goksu’s work capacity was assessed at between eight to fourteen hours per week with intervention. The Assessor identified suitable work as being “light less skilled, for example, as a light process/delivery driver or ticketing or crossing supervisor.

6. On the basis of the Job Capacity Assessment Report Centrelink determined that Mr Goksu’s DSP was not portable for an indefinite period but limited to six week periods whilst he was absent from Australia.

7. Mr Goksu went overseas on 6 October 2013 and returned to Australia on 21 March 2014. He departed Australia again on 11 May 2014 and has not returned. Mr Goksu’s DSP was paid for a six week period whilst he was overseas.

8. As a result of Centrelink’s decision Mr Goksu arranged for further medical reports to be forwarded to Centrelink. A report was received from Michael A Johnson, Orthopaedic Surgeon dated 23 April 2013 following a review of Mr Goksu on that date.  Mr Johnson advised that an MRI scan had been performed in Turkey following an exacerbation of Mr Goksu’s back condition and that a Turkish surgeon had suggested that he may benefit from a spinal infusion.  The report stated that as Mr Goksu did not wish to proceed with surgery he underwent exercise and rehabilitation treatment and that pain continues in his back and left leg and he takes regular Panadol for pain relief. Because Mr Goksu is not improving with time, Mr Johnson states that this has understandably resulted in increasing depression. Because Mr Goksu does not wish to consider surgical treatment, Mr Johnson stated that:

   “We are very limited in what we can offer.”

9. Mr Goksu attended three appointments with Dr Firdevs Tat, Clinical Psychologist and Neuropsychologist on 15/07/13, 16/08/13 and 19/09/13. Dr Tat reported that Mr Goksu had scheduled further sessions which were cancelled because he had decided to go back to his home country Turkey. Mr Goksu had told Dr Tat that he felt isolated in Melbourne since being unemployed following his back injury in 2006. He struggled emotionally to adjust to being unemployed and experiencing chronic pain. He also attempted to cope with excessive alcohol abuse which had led to financial and marital issues. Mr Goksu said that he feels more supported in Turkey with his family who are able to support his emotional and physical needs which allows his wife, who has been his carer since his disability, some self-care opportunity.

10. In a report received by Centrelink on 2 January 2014 Dr Tat stated that:

    “Mr Goksu presented with significant symptoms of depression (please see previous report for diagnostic information). I am of the opinion that given his current level of psychological dysfunction, he is unlikely to be able to maintain employment.”

11. A report was also received from Dr Nihal Kucuk, Clinical Hypnotherapist dated 15 December 2013 in which he stated that Mr Goksu’s mood was severely depressed which affected his entire outlook on life. Dr Kucuk reported that Mr Goksu had attended for three consultations on 25/07/07, 01/10/08 and on 13/12/13, (the last appointment was not in person) and that in his opinion, “it appears as though his mental health would make it extremely difficult to sustain employment.’

12. A report was also received from Dr Abe Granek, General Practitioner dated 14 January 2014 in which he stated:

    “I have no doubt that Mr Goksu is capable of performing any suitable work that will not impact upon his back condition and that is available in Australia for more than two hours per week within the next five years. It is also my opinion as well that the single most determinant to work capacity is the motivation to be gainfully employed.”

13. In a report from Dr Lawrence Woo, General Practitioner of 15 April 2014, he stated that Mr Goksu is suffering from a chronic back condition which has no chance of improving despite appropriate rehabilitation. In his opinion taking into consideration his age, work experience/training and limited English, Mr Goksu is unemployable and could not perform any work which involves prolonged standing and sitting due to his back condition. He noted that his depression had improved whilst he resided in Turkey.

14. Mr Goksu submitted a report from Dr Roy Nallaratnam, Consultant Psychiatrist dated 15 May 2014. Dr Nallaratnam reported that during the interview Mr Goksu was obviously in pain which has infringed on his activities including his sleep. Consequently Mr Goksu “is so depressed that frequently he has had thoughts of suicide. As a result his two daughters take turns with his wife to keep him under supervision. He is, in my opinion, totally incapable of holding down even a sedentary job.”

    PORTABILITY RULES

15. The law governing the payment of pension benefits outside Australia is contained in the Social Security Act 1991 (the Act). As there is no international agreement in place with Turkey, Mr Goksu’s portability is to be determined in accordance with the provisions of the Act.

16. Section 1217 provides that a person in receipt of DSP and who is an Australian resident has a maximum portability period of six weeks. This provision also provides that an indefinite portability applies to a DSP recipient if they satisfy the requirements of either section 1218AA (terminally ill) or section 1218AAA  (no work capacity).

17. Section 1218C provides that a person’s portability period may be extended when a person is unable to return to Australia because of a specified event which arises during the initial portability period. This provision has no application to the applicant’s circumstances.

18. It was not contended and nor was there any evidence that the applicant suffers from a terminal illness. The unlimited portability provisions in section 1218AA therefore do not apply.

19. Section 1218AAA provides for unlimited portability for a severely impaired disability support pension. Sub-section 1 provides as follows:

    “(1)The Secretary may make a written determination 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 receiving disability support pension;

    (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

    (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

    (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.”

    CONSIDERATION AND FINDINGS

20. In order for Mr Goksu to qualify for unlimited portability of his DSP he must satisfy the qualifying circumstances as set out in Section 1218AAA (1). He satisfies the provisions of sub-section (a) as he was in receipt of DSP at the relevant time.

21. It was submitted by Mr Sparkes on behalf of the Secretary that there was evidence before the Tribunal which could support a finding that Mr Goksu’s depressive condition was not fully treated and stabilised and therefore not permanent in the sense of attracting an impairment rating. Centrelink’s determination that Mr Goksu did not have a portability period of greater than six weeks was made on 12 December 2013. Mr Sparkes submitted that Mr Goksu had only commenced treatment for his depression shortly prior to Centrelink’s decision which he ceased when he returned to Turkey and resumed just prior to making his application for a review of the decision.

22. Dr Tat confirmed that he had seen Mr Goksu for three sessions in 2013 prior to his departure to Turkey. Dr Kucuk reported that Mr Goksu had consulted him in July 2007 and in October 2008 and remotely in December 2013.

23. All of the medical consultants who have treated Mr Goksu have confirmed his depressive disorder. Whilst it appears that he did not seek treatment whilst in Turkey, it was Mr Goksu’s evidence as confirmed by his wife, that he was receiving much support from his family and that his mental condition was improved whilst he was residing in Turkey.

24. Whilst the Tribunal is at liberty to reconsider any findings that are the subject of this review, I do not consider that there is sufficient evidence to disturb the finding that Mr Goksu’s depressive illness was not permanent at the time of Centrelink’s decision. The evidence is not clear however, as to whether Mr Goksu satisfies the requirement that his severe impairment will continue for at least the next five years.

25. The more pertinent issue for the Tribunal is the question of Mr Goksu’s ability to work within the next five years. The Job Capacity Assessor found that Mr Goksu’s work capacity may improve over the next two years with appropriate intervention and support and assessed his capacity for work at between eight and fourteen hours per week. Mr Goksu relied on the medical reports as outlined above in support of his contention that he was not able to work.

26. It is notable however, that none of these reports refer to Mr Goksu’s ability to work within the meaning of the relevant legislative provision and the words “independently of a program of support” as included in subsection 1218AAA (1) of the Act. Dr Nallaratnam states that Mr Goksu is “totally incapable of holding down even a sedentary job”. Dr Woo in a report of 15 April 2014 stated that “he has no capacity for any type of work permanently on account of his back condition and taking into consideration Mr Goksu’s age, work experience/training and limited English.”  Dr Woo did not consider that Mr Goksu’s lower back condition was likely to improve over the next 5 to 10 years.  Dr Tat reported that given Mr Goksu’s current level of psychological dysfunction, “he is unlikely to be able to maintain employment”.

27. On the other hand Dr Granek as recently as 14 January 2014, stated that in his opinion, Mr Goksu was capable of performing any suitable work for more than two hours per week within the next five years. He went on to state that the single most determinant to work capacity is the motivation to be gainfully employed. Mr Granek enclosed treating orthopaedic surgeon and psychologist reports.

28. Whilst the medical reports state that Mr Goksu is unable to work they do not state whether he would be assisted by a program of support and nor do they refer to a timeframe. The reports do not distinguish between casual or permanent work, full or part-time work, nor whether Mr Goksu would be able to undertake any type of work with support within a five-year period.

29. The only evidence before the Tribunal that references these legislative provisions is the Job Capacity Assessment Report of 10 September 2013 which takes account of the medical reports and assesses Mr Goksu’s capacity for work at between eight and fourteen hours per week with appropriate intervention and support.

30. On the basis of the evidence presented at the hearing and the material before the Tribunal, I am not satisfied that Mr Goksu meets the legislative requirements for indefinite portability of his DSP pension. It is for these reasons that the decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

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Administrative Assistant

Dated

Date(s) of hearing	17 September 2014
Applicant	In person
Solicitors for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch