Farah and Secretary, Department of Social Services (Social services second review)
[2016] AATA 496
•15 July 2016
Farah and Secretary, Department of Social Services (Social services second review) [2016] AATA 496 (15 July 2016)
Division
GENERAL DIVISION
File Number
2015/5829
Re
Liban Farah
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms A F Cunningham, Senior Member
Mr D J Morris, MemberDate 15 July 2016 Place Perth The decision under review is affirmed.
.........[Sgd]...............................................................
Ms A F Cunningham, Senior Member
SOCIAL SERVICES – Disability Support Pension – whether qualified – spinal impairments – immigration status of applicant – New Zealand citizen – definition of “Australian resident” under International Agreements Act – aggregate period of residency – definition of “severely disabled” – reviewable decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) – s 7(2) – s 7(2A) – s 7(2D) – s 7(5) – s 7(6) – s 94 – s 94(1)(e)(ii)
Social security (International Agreements) Act 1999 – s 6(1) and Schedule 3 Article (1)(l)(i) – Article 2(2) – Article 5(1) – Article 12
CASES
Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous [2013] FCAFC 75; (2013) 213 FCR 532
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Agreement on Social Security between the Government of Australia and the Government of New Zealand, made at Wellington on 19 July 1994 and subsequently amended on 7 September 1995 and 2 July 1998
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
Mr D J Morris, MemberBACKGROUND
Mr Liban Farah struggles with health conditions that have affected his ability to function and work. He has done so for several years. His condition is not improving. He lodged a claim for Disability Support Pension (DSP) but this was rejected by primary determination and on review. Mr Farah has sought a further review.
The hearing was held on 16 May 2015. Mr Farah represented himself and appeared by telephone from Western Australia. The respondent was represented by Ms Katherine Whittemore. Mr Farah gave evidence under affirmation and was cross-examined by counsel for the respondent.
The respondent tendered ‘T’ documents under section 37 of the Administrative Appeals Tribunal Act 1975. The applicant tendered additional documents, namely reports from Dr Helen Keen of the Department of Rheumatology at Royal Perth Hospital dated 27 May 2013; from Dr Andrew Taylor of the same Department dated 24 July 2013 and a medical certificate from Dr Siva Shankar Damodaran, of Spencer Road Family Practice, dated 25 February 2016. The applicant also tendered a response statement dated 5 April 2016 to the respondent Secretary’s Statement of Facts, Issues and Contentions submitted on 4 April 2016. The Tribunal had regard to all of these documents.
FACTS
Mr Farah is a 29 year old man who was born in Somalia in 1986 but moved to New Zealand in 1993. He is a New Zealand citizen.
In 2002, Mr Farah moved to Australia. He subsequently returned to New Zealand to complete schooling and tertiary study, before returning to live in Australia in 2012. He holds a subclass 444 visa but is not a protected Special Category visa (SCV) holder. Because of Mr Farah’s immigration status, the Social Security (InternationalAgreements) Act 1999 (the Agreement Act) applies in his case.
On 16 April 2015, Mr Farah lodged a claim DSP on the basis that his medical condition affects his ability to function and work. The condition is described in the claim form as “ankylosing spondylitis.”[1]
[1] Document T6
On 14 May 2015, Mr Farah attended a face to face job capacity assessment (JCA). The assessor noted medical reports diagnosing arthritis and “Ankylosing Spondylitis with bilateral hip arthritis”, and concluded that Mr Farah’s medical conditions warranted an impairment rating of 15 points and that he had a work capacity of 8-14 hours per week, and a capacity for work within 2 years with intervention of 15-22 hours per week.[2]
[2] Document T7
On 20 May 2015, Centrelink rejected Mr Farah’s claim on the basis that he was not “severely disabled” as defined in Schedule 3 of the Agreement Act because he was assessed as being able to work for more than eight hours per week.
On 16 June 2015 an Authorised Review Officer (ARO) concluded that Mr Farah did not qualify for DSP because he did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Social Security Act), in that he did not have an impairment rating of 20 points or more, that he did not have a severe impairment as defined by the legislation, that he had not completed a program of support and that he did not have a continuing inability to work.
On 22 September 2015 the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) found that Mr Farah’s impairment rating was 10 points and that he did not qualify for DSP because he did not satisfy the requirements of section 94 of the Social Security Act.
In this proceeding, Mr Farah seeks review of the decision by AAT1.
ISSUES
Residency
Section 94(1)(e)(ii) of the Social Security Act provides that a person is qualified for DSP if the person:
has 10 years qualifying Australian residence, or has a qualifying residence
exemption for a disability support pension;
Subsection 7(5) of the Social Security Act provides that a person has 10 years qualifying residence if and only if:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) the person has been an Australian resident during more than one period and:
(i) at least one of those periods is five years or more; and
(ii) the aggregate of those periods exceeds 10 years.
Subsection 7(2) defines “Australian resident” as 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.
Subsections 7(2A) to 7(2D) go on to define who is a protected SCV holder. Those subsections each require a person to have been living in Australia on a special category visa on 26 February 2001.
Subsection 7(6) of the Social Security Act provides that a person has a qualifying residence exemption for a social security pension if, and only if, the person:
(a) resides in Australia; and
(b) is either:
(i) a refugee; or
(ii) a former refugee.
Mr Farah is not the holder of a permanent visa, nor is he a protected SCV visa holder. He holds a subclass 444 visa. He does not meet the exemption provisions provided for in subsection 7(6) of the Social Security Act. Accordingly, he does not qualify for DSP under the Social Security Act.
However, Australia has a social security agreement (the Agreement) with New Zealand, which is set out in Schedule 3 of the Agreement Act.
Schedule 3 contains an agreement between the Governments of Australia and New Zealand. Article 5(1) of the Agreement provides that:
“Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia.
The movement record provided to the Tribunal shows that Mr Farah first arrived in Australia from New Zealand on 17 January 2002. He departed Australia in February 2003 to complete his higher education in New Zealand. He briefly returned to Australia between December 2005 and March 2006, and then returned to New Zealand. On 2 February 2012, Mr Farah returned to Australia and took up residence in Perth, Western Australia.
Therefore, Mr Farah has not been in Australia for a continuous period of 10 years, or an aggregate period of 10 years.
Article 12 of the Agreement between Australia and New Zealand provides that certain periods of residency in one country may be counted as residency in the other country.
Paragraph 4 of Article 12 says:
“No person shall be entitled to claim 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.”
Section 6(1) of the Agreement Act provides that the provisions of the Agreement have effect despite anything in the social security law.
The Tribunal finds, on the evidence of the movement record, that Mr Farah does have an aggregate of more than 10 years residence in Australia and New Zealand and is therefore entitled to claim a DSP under the provisions set out in the Agreement Act, but not the Social Security Act.
Qualification for DSP under the Agreement
The Agreement with New Zealand is given statutory effect in Schedule 3 of the SocialSecurity (International Agreements) Act 1999. That Schedule provides, inter alia, that an Australian DSP and a New Zealand invalid’s pension shall be limited to cases where a person is severely disabled.
Schedule 3, of the Agreement Act provides, at Article 2(2) that:
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 the 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.
“Severely disabled” is defined in Article 1(l)(i) of the Agreement as follows:
“severely disabled” means a person who:
(i) Has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa) to work for at least the next 2 years; and
(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(ii) is permanently blind.”
Relevantly, in Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous (2013) FCAFC 75, Logan J stated:
[60] Article 2 of the Agreement shows what Art 12(4) contemplates by a person becoming “entitled to claim a disability support pension under th[e] Agreement”. The effect of Art 2(1)(a)(ii) is that a person (who falls within Art 3) may, under the Agreement, claim a disability pension for which the Social Security Act makes provision. The effect of Art 12(4) is that where a person has “accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand” that person can seek a disability support pension as of right, providing he or she satisfies Art 2(2) (and any other relevant provision of the social security law that has not been overridden by the Agreement).
[61] Article 2(2), not Art 12(4), is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement. Thus, Art 2(2) expressly provides that “[f]or the purposes of this Agreement an Australian disability support pension … shall be limited to cases where” the person is severely disabled (Art 2(2)(a), read with Art 1(1)(l)); was a resident of Australia or New Zealand at the date of severe disablement (Art 2(2)(b), read with Art 1(1)(f)); and was residing in New Zealand for a period of not less than one year at any time prior to the date of severe disablement (Art 2(2)(c)).
The Agreement Act does not give any further guidance on how the term “severely disabled” should be interpreted. The Guide to Social Security Law produced by the Department of Social Services provides, at chapter 1.1.S.110, that a person is considered to be “severely disabled” if his or her impairment prevents him or her from being able to do any work for 8 hours or more for the next 2 years.[3]
[3] Guide to Social Security Law, DSS, Version 1.221 – Released 16 May 2016
Medical evidence
The Tribunal had before it a number of medical reports relating to the applicant.
On 24 March 2015 Dr Ahmed Maitieg faxed to Centrelink an undated medical report confirming that Mr Farah had “ankylosing spondylitis [with] bilateral hip arthritis”.[4]
[4] Document T5
On 16 June 2015 Dr Siva Damodaran provided a medical report confirming that Mr Farah had “ankylosing spondylitis – severe” and also “osteoarthritis of the hips”. Dr Damodaran noted that this diagnosis had been made with input from the Rheumatology Clinic at the Royal Perth Hospital.[5]
[5] Document T10
A letter dated 28 August 2013[6] from Dr Laurence Cusick of the Department of Orthopaedic Surgery at Fremantle Hospital said that Mr Farah had been initially diagnosed, when a child, with juvenile rheumatoid arthritis but that the diagnosis was changed when he was 15 years old to ankylosing spondylitis.
[6] Document T4
The consistent medical evidence is therefore that the applicant has the condition of ankylosing spondylitis with bilateral hip arthritis. The Tribunal accepts this evidence.
Total inability to work
As mentioned above, Article 1(l)(i) of the Agreement, relevantly, provides that a claimant for DSP must have a physical impairment which makes the person totally unable to work for at least the next 2 years and unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.
The JCA conducted on 14 May 2015 found that Mr Farah is able to work for a baseline of between 8 and 14 hours per week, and between 15 to 22 hours per week with intervention in the next two years.
The JCA noted that the applicant has demonstrated previously working part time “up to 25 hours per week” as a service desk technician. The applicant also advised the JCA assessor that he had worked for seven months at Work Focus and Atwork as a service technician, part-time, for two days a week and also worked for IT Kinetic for three months, also in this role.[7]
[7] Document T7, page 73
Mr Farah’s evidence
In his evidence before the Tribunal, the applicant talked about the physical difficulties his medical condition presents. He told the Tribunal that he could not use stairs and that he had pain radiating down his leg. He said that he had difficulty with showering and had a numbing feeling if he sat for any long period.
He said he was able to stand for between 10 or 15 minutes and used crutches to move from room to room in his house. He later said that sometimes he could use a cane, if he did not have to walk any long distance.
Mr Farah said that he had originally decided not to go ahead with hip surgery and that he intended to defer such surgery until he had tried tumour necrosis factor (TNF) blocker treatment, but that he had not yet commenced TNF blocker treatment. He told AAT1 that he had decided against TNF and had decided to proceed with surgery and was on a waiting list for orthopaedic surgery. He told this hearing he was now planning to try TNF.
The applicant said in his submission dated 5 April 2016[8] that he had worked for 2 months in 2014 for “25 hours a week”. In his oral evidence to the Tribunal he said that he worked between 10 and 15 hours a week in the office of Safety Bay High School, and that the hours of work fluctuated over that period, depending on the workload.
[8] Exhibit A4
He said he had worked in 2012 and 2013 for 8 hours a week, 2 days a week at 4 hours a day. He told the Tribunal he had not worked in 2015. The JCA report date dated 14 May 2015 stated that the applicant’s baseline work capacity is considered reduced to the 8-14 hours per week level:
due to the combined impacts resultant from his medical conditions: Anklylosing spondylitis with severe bilateral hip arthritis, which impacts negatively on his mobility and capacity to bend, lift and carry. The [applicant] has demonstrated previously working part time up to 25 hours per week, as a service desk technician.[9]
[9] Document T7, page 32
The JCA report goes on to state, in regard to the applicant’s capacity to work with intervention for between 15 and 22 hours per week:
The client would benefit from future access to sustained vocational rehabilitation and support. It is anticipated, with access to DMS interventions, the client may be capable of building his work capacity to the 15-22 hours per week level.[10]
[10] Document T7, page 32
It would appear that, although he may be restricted in the types of jobs he could do, he may be able to utilise his tertiary studies and experience in Information Technology.
Mr Farah was articulate in the hearing and it is to his credit that, notwithstanding his physical challenges, he had persisted with studies and gained two tertiary qualifications.
CONCLUSIONS
Because of the immigration status of the applicant, the Tribunal must apply the provisions of the Agreement Act, not the Social Security Act.
The Tribunal accepts that Mr Farah is eligible to apply for a DSP because he satisfies the aggregate residency requirements provided for in the Agreement Act.
The Tribunal also accepts that Mr Farah has a physical impairment under Article (1)(l)(i) of the Agreement.
The Tribunal finds that the applicant cannot satisfy the requirements in Schedule 3, Article 1 of the Agreement Act of being “severely disabled”, because, while he may have a physical impairment in terms of Article 1(l)(i), he does not satisfy the “totally unable to work” provisions set out in that Article because the evidence from the JCA is that he has worked for more than 8 hours a week in the recent past.[11]
[11] Document T7, page 73
DECISION
As the applicant is required to satisfy the requirements set out in Article 1 of the Agreement Act, and has not done so, the reviewable decision is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member Mr D J Morris, Member ........[Sgd]................................................................
Administrative Assistant
Dated 15 July 2016
Date of hearing 16 May 2016 Applicant Self-represented (by telephone) Representative for the
RespondentMs K Whittemore Solicitors for the Respondent
Mills Oakley Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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