FALLAH and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2011] AATA 344

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 344

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0001

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHARLOTTE FALLAH

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr I S Alexander

Date23 May 2011

PlaceSydney

Decision The decision under review is affirmed.

.........................[sgd].....................

Dr I S Alexander

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification period – residency in Australia – resident when Applicant first has continuing inability to work – insufficient evidence of residency during qualification period – decision under review affirmed.

Social Security Act 1991 (Cth) s 94.

Social Security (Administration) Act 1999 (Cth) cl 4 of Schedule 2.

REASONS FOR DECISION

23 May 2011 Dr I S Alexander   

1.      Mrs Fallah is a 56 year old woman who suffers from significant functional impairment because of chronic rheumatoid arthritis.

2. On 18 August 2010 Mrs Fallah submitted a claim for Disability Support Pension (DSP). Her claim was rejected by Centrelink on the basis that she did not satisfy the residence requirements in section 94(1)(e) of the Social Security Act 1991 (the Act).

3.      On 9 April 2010 the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision. Mrs Fallah now seeks review of that decision.

4.      Mrs Fallah attended the hearing on 12 May 2011 and was represented by her oldest son, Mr Tony Fallah. With the assistance of an Arabic interpreter she was able to give only limited oral evidence.

ISSUES

5.      Section 94 of the Act sets out the criteria for qualification for DSP.

6.      Relevantly, section 94(1) provides, inter alia, that:

94 Qualification for disability support pension

(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; and

(f) the person is not qualified for disability support pension under section 94A.

7.      Section 94(2) provides that:

(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

8. Clause 4 of Schedule 2 to the Social Security (Administration) Act 1999 provides that the assessment for DSP must occur within a period of 13 weeks after the day on which the claim is made (the qualification period) which in this case is between 19 August 2010 and 18 November 2010.

9.      There is no dispute that Mrs Fallah suffers from severe chronic rheumatoid arthritis and that her functional impairment is such that she satisfies sections 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(d) and 94(1)(f) of the Act.

10. The secretary contends, however, that Mrs Fallah does not satisfy section 94(1)(e), in particular section 94(1)(e)(i).

11.     It is agreed that Mrs Fallah does not satisfy sections 94(1)(e)(ii) or 94(1)(e)(iii).

12. Therefore the only issue to decide in this case is whether Mrs Fallah satisfies section 94(1)(e)(i), that is, whether she was an Australian resident when she first had a continuing inability to work.

EVIDENCE

13.     Mrs Fallah was born in Lebanon in June 1954. According to an arrival and departure document obtained by Centrelink, she was said to have arrived in Australia on 20 November 1976 and returned to Lebanon on 16 April 1977 after only five months in Australia.

14.     On 18 March 1977 she acquired Australian Citizenship.

15.     In her brief oral evidence Mrs Fallah was unable to remember when she first came to Australia. There is also conflicting evidence on the documentation as to when she first spent time in Australia.

16.     In an application for DSP in January 2003, her first arrival in Australia was noted as being in 1975.

17.     In a statement dated 19 February 2003, in support of a claim for Special Benefit, Mrs Fallah stated that she came to Australia in 1975 and was resident for about two years before returning to Lebanon.

18.     In the decision of a Centrelink Authorised Review Officer, dated 25 October 2010, her first period of residence in Australia was stated to be from 18 March 1975 until 30 December 1977.

19.     In evidence before the before the SSAT Mrs Fallah said that she came to Australia when she was 28 and lived in Marrickville for 18 months.

20.     The conflicting evidence with respect to Mrs Fallah’s first arrival in Australia may be explained by her impaired memory which was evident at the hearing. However, an error in the Centrelink documents has not been excluded.

21.     Notwithstanding Mrs Fallah’s difficulties with her memory, in her oral evidence she claimed that during her first period of residence in Australia she became so ill that she was unable to care for her young son. She did not seek medical attention at the time because of domestic issues but soon after returning to Lebanon she said that she was hospitalised for one month.

22.     I note that in evidence before the SSAT, Mrs Fallah stated that it was while she was living in Marrickville that she had first started to suffer from severe joint pains that prevented her from getting out of bed.  She also told the SSAT that on returning to Lebanon she spent a month in hospital where she had a biopsy and was told that she had rheumatoid arthritis. She explained that when she got out of hospital she had lost weight, was on medication and that her mother had looked after her two sons during that time. I note that her second and youngest son was born in July 1979.

23.     This evidence would suggest that she was hospitalised after July 1979 and not soon after returning to Lebanon in 1977.

24.     Mrs Fallah stayed in Lebanon until she returned to Australia in January 2003. She stayed for only 12 months before again returning to Lebanon.

25.     In February 2003 she submitted a claim for the DSP which was rejected by Centrelink on the grounds that she did not meet the residence criteria.

26.     Her claim was supported by a medical report from Dr Latif dated 29 January 2003. The report was somewhat brief and unhelpful but did confirm that in January 2003 Mrs Fallah had advanced rheumatoid arthritis and was not able to work at all.

27.     Dr Latif noted that the date of onset of her condition was 1975 and that the diagnosis was also confirmed in 1975 with no explanation to support his assumptions. Furthermore, these dates are not consistent with other dates on other evidence that has been presented.

28.     On 9 August 2010, Mrs Fallah returned to Australia and has remained a resident since that time.

29.     On 18 August 2010 Mrs Fallah again submitted a claim for DSP which was also supported by a medical report from Dr Latif and dated 17 August 2010.

30.     This report was also very brief and generally unhelpful but Dr Latif did state that Mrs Fallah had a “25 years history of diagnosis of Rheumatoid arthritis causing hand deformities, spinal problems and gait and balance problems” which points to a diagnosis in about 1985.

31.     The only other relevant medical evidence is a translated copy of a Discharge Certificate in respect of a 10 day hospital admission in September 1981.

32.     The certificate confirms that Mrs Fallah suffered from chronic rheumatoid arthritis but provides no functional assessment.

33.     However, the certificate does suggest that her first admission to hospital for articular pains occurred at the age of 25 and that the pains commenced in the fifth month of her second pregnancy.

34.     This points to a conclusion that her joint symptoms started during her second pregnancy in 1979.

CONSIDERATION

35.     The first question to consider is when Mrs Fallah was an Australian resident for the purposes of the Act.

36.     Section 7(2) of the Act provides:

7 Australian residence definitions

(2) An Australian resident is a person who:

(a) resides in Australia; and

(b) is one of the following:

(i) an Australian citizen;

(ii) the holder of a permanent visa;

(iii) a special category visa holder who is a protected SCV holder.

37.     Section 7(3) of the Act states that:

(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

(a) the nature of the accommodation used by the person in Australia; and

(b) the nature and extent of the family relationships the person has in Australia; and

(c) the nature and extent of the person’s employment, business or financial ties with Australia; and

(d) the nature and extent of the person’s assets located in Australia; and

(e) the frequency and duration of the person’s travel outside Australia; and

(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.

38.     The evidence suggests that Mrs Fallah resided in Australia on three separate occasions.

39.     The first period of residence was when she first came to Australia with her husband and first born son. Although there is some dispute as to when she arrived and the length of time she stayed in Australia, for present purposes I will assume, without deciding, that she was an Australian resident from March 1975 for about two years.

40.     There is no dispute Mrs Fallah returned to Lebanon in 1977 and stayed there for the next 26 years until she returned to Australia in January 2003.

41.     Having regard to the factors listed in section 7(3) and the evidence before me, I am satisfied that during those 26 years Mrs Fallah could not be considered to have been an Australian resident for the purposes of the Act.

42.     There is no dispute that from January 2003 to January 2004 Mrs Fallah was an Australian resident.

43.     Also, there is also no dispute that Mrs Fallah returned to Australia on 9 August 2010 and has been a resident since that time.

44.     The second question as to when Mrs Fallah first had a continuing inability to work, thereby first satisfying section 94(1)(c), is problematic because of the less than satisfactory medical evidence and Mrs Fallah’s impaired recollections.

45.     What is clear, however, from the available evidence, is that in January 2003 Mrs Fallah was sufficiently impaired from her rheumatoid arthritis to be unable to work.

46.     This means that Mrs Fallah would have first satisfied section 94(1)(c) prior to 2003 and sometime after 1975.

47.     Mrs Fallah contends that she first satisfied section 94(1)(c) during her first period of residency in Australia.

48.     The difficultly with her contention is that the limited evidence before the Tribunal tends to support a conclusion that the clinical onset of her rheumatoid arthritis occurred after she had returned to Lebanon.

49.     Even if I were to accept that the clinical onset of her rheumatoid arthritis did occur during the first period of residency in Australia her contention remains problematic.

50.     The  test  to satisfy section 94(1)(c) is not the time of clinical onset of a medical condition but the time at which the level of functional impairment caused by medical condition reaches the required threshold as defined by the Act.

51.     In this case there is no reliable evidence to indicate when Mrs Fallah first had a continuing inability to work thereby first satisfying section 94(1)(c).

52.     Furthermore, in the context of a chronic medical condition that has evolved over more than 25 years the contention that she had a continuing inability to work, as defined in the Act, shortly after the clinical onset of her rheumatoid arthritis is, in my view, not sustainable without reliable evidence to support that contention. In this application for review there is no such reliable evidence before the Tribunal.

53. Therefore I am not satisfied that Mrs Fallah first had a continuing inability to work during her first period of residence in Australia which means that the requirements of section 94(1)(e)(i) cannot be satisfied.

DECISION

54. For the reasons set out above I find that during the qualification period Mrs Fallah was unable to satisfy the residence requirements of section 94(1)(e) of the Act and therefore does not qualify for DSP.

55.     The decision under review is affirmed.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I S Alexander.

Signed:         .................[sgd]...............................................................
  Associate

Date/s of Hearing  12 May 2011
Date of Decision  23 May 2011
Applicant  Self-represented 
Solicitor for the Respondent     James Larcombe, Centrelink Advocacy Branch