Fernando and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 343
•30 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 343
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0603
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER FERNANDO Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date30 April 2008
PlaceSydney
Decision The decision under review is varied. I find that Mr Fernando was not “severely disabled” as defined under the Social Security Act 1991 when he departed Australia on 14 July 2001 and that he therefore was entitled to payment of disability support pension for a period of 26 weeks only after his departure. ..................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – portability period – finding that applicant not “severely disabled” – decision varied
Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (No 122, 2003)
Guide to Social Security Law
Social Security Act 1991 ss 23(4B), 94, 94(5), 1213A, 1217
Social Security (Administration) Act 1999 s 109
Social Security (International Agreements) Act 1999
Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Secretary, Department of Family and Community Services and Walsh (2002) 71 ALD 268
Re Secretary, Department of Social Security and Tsakrios (1994) 79 SSR 1154b
REASONS FOR DECISION
30 April 2008 Ms Robin Hunt, Senior Member Decision Under Review
1. The decision under review is the decision of the Social Security Appeals Tribunal (SSAT) made on 7 February 2007, which affirmed a Centrelink decision that Mr Fernando qualified for disability support pension (DSP) on 14 July 2001 and that it was portable only for a 26 week period taken from the time he departed Australia on 14 July 2001.
issue
2. The issue is whether Mr Fernando is entitled to continuing payment of disability support pension while he is overseas.
3. A decision in Mr Fernando’s favour depends on whether he was “severely disabled” at the time he left Australia for Sri Lanka on 14 July 2001.
decision
4. For the reasons set out below, I have decided that Mr Fernando was not "severely disabled" as defined in sub-section 23(4B) of the Social Security Act 1991 (the Act) when he departed Australia on 14 July 2001, and therefore was entitled to payment of DSP for a period of 26 weeks only.
Background
5. The matter before the tribunal has a history. Initially, Mr Fernando’s claim for DSP in 2001 was rejected and then was successful on review before the SSAT. However, he was not paid arrears and payments ceased at the end of the period determined by the SSAT as appropriate in his case. So he appealed the decision of the SSAT. The Administrative Appeals Tribunal (AAT) then purported to make a decision as to the period over which he was entitled to receive payments but this decision was overturned by the Federal Court. Mr Fernando then obtained a Centrelink decision about the period of his entitlement, was dissatisfied with this decision and took the matter through another series of reviews.
6. Mr Fernando indicated that he wished the present tribunal to decide his case on the papers. In conducting the review, I have relied on documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (the T-documents), as well as correspondence received from both parties outlining their contentions.
7. From the respondent’s facts and contentions, I note that Mr Fernando originally claimed DSP on 10 April 2001. Mr Fernando wrote a letter in support of his application setting out medical information, details of compensation payments he received and other matters he considered relevant to his claim. Dr Thomas Verghis completed a treating doctor’s report on 4 July 2001, which Centrelink recorded as a file document on 9 July 2001. Various other certificates, financial information and other materials received from Mr Fernando are also on file.
8. On 11 July 2001, Centrelink recorded Mr Fernando’s attending to enquire about the progress of his claim and to inform an officer that he was going to Sri Lanka on 14 July 2001. On 12 July 2001, Centrelink received another claim form, called a Claim for Payments for people with disabilities, illness or injuries form. In this form, Mr Fernando stated he was self-employed, for eight hours per week, and was about to travel to Sri Lanka on 14 July 2001. Mr Fernando departed as intended and therefore missed a medical appointment arranged in connection with the processing of his claim. Centrelink noted on 2 August 2001 that Mr Fernando missed a medical appointment and, on the same day, wrote to Mr Fernando saying his claim had been rejected because of this.
9. A few days after Centrelink wrote to him, Mr Fernando sent a facsimile message to Centrelink on 8 August 2001 saying, among other things, that he would be returning to Sydney in January 2002 and requesting another medical appointment. In the meantime, a Health Services Australia (HSA) medical adviser, on 17 October 2001, made an assessment based on the medical evidence Mr Fernando had furnished already and concluded that Mr Fernando was fit for “lower stressed full or part time work or training”. The doctor recommended further assessment when Mr Fernando eventually returned to Australia.
10. Mr Fernando’s application for DSP led to a series of determinations, decisions and appeals. The original determination on Mr Fernando’s claim, made on 2 August 2001, was reconsidered, on 9 November 2001, and again rejected by Centrelink.
11. After rejecting his claim in 2001, Centrelink treated his facsimile letter of 8 August 2001, requesting another medical appointment, as a request for review of the decision to reject his claim for DSP. This resulted in a HSA review and file assessment of his medical conditions. Centrelink rejected Mr Fernando's claim for DSP a second time on 9 November 2001. He was informed of this decision by letter sent to his last known address in Australia on the same day, 9 November 2001.
12. Almost two years later, on August 2003, Mr Fernando wrote to Centrelink requesting a review of the decision to reject his claim for DSP. More specifically, Mr Fernando asked to be granted DSP and to be paid arrears. However, on 4 March 2004, an Authorised Review Officer (ARO) considered and affirmed the refusal decision made in 2001.
13. Mr Fernando appealed to the SSAT on 3 June 2004 and the SSAT decided on 15 September 2004 that he was qualified for DSP at the time he lodged his claim, that is, on 10 April 2001. The SSAT decision made no reference to whether Mr Fernando was eligible to receive payment of DSP in arrears before the date of his claim and did not have regard to section 109 of the Social Security (Administration) Act 1999 (the Administration Act). In brief, the SSAT did not consider whether, pursuant to section 109 of the Administration Act, Mr Fernando’s having failed to request a review of Centrelink's original decision of 9 November 2001 within 13 weeks meant he was not entitled to be paid arrears.
14. Centrelink implemented the SSAT’s decision and made payment to Mr Fernando to cover the period from which the SSAT found he was eligible. However, because of the restrictions on payment to persons living overseas, known as the “portability period”, on 29 November 2004, Centrelink sent to Mr Fernando a letter stating his DSP was cancelled, with effect from 14 January 2002, because he had been overseas for more than 26 weeks.
15. Despite his partial success at the SSAT, Mr Fernando appealed to the AAT. On 2 December 2005, the tribunal affirmed the SSAT’s decision. However, as a result of Mr Fernando’s subsequent appeal to the Federal Court, Justice Cowdroy, on 7 June 2006, made an order setting aside the tribunal’s decision, on the basis that the Tribunal had no jurisdiction to review the period Centrelink was to pay the DSP.
16. Mr Fernando’s solicitor contacted Centrelink on 12 September 2006 and requested review of the decision to stop paying the DSP from 14 January 2002. This review concluded on 20 September 2006 and an ARO affirmed the decision to stop payments from 14 January 2002. Mr Fernando appealed to the SSAT against this decision on 5 October 2006. The SSAT then decided on 7 February 2007, on the basis of material before it, including Mr Fernando’s medical reports and evidence Mr Fernando gave about his small business activities, that Mr Fernando was not “severely disabled” when he left Australia on 14 July 2001 and that this meant the portability rules pursuant to section 1217 of the Act applied. The SSAT further decided that payments should cease within 26 weeks, stating that this was from 14 January 2006. This is the decision which I am reviewing.
consideration of evidence
17. For the present review, Centrelink arranged for Work Solutions Australia (WSA) to review Mr Fernando’s medical file to determine if Mr Fernando was severely disabled when he departed Australia on 14 July 2001. The resulting Job Capacity Assessment report dated 10 August 2007 concluded Mr Fernando was not severely disabled at the time he departed Australia for Sri Lanka on 14 July 2001.
18. In his completed form of Claim for Payments for people with disabilities, illnesses or injuries lodged on 12 July 2001, Mr Fernando set out on page 34 of the form that he was self-employed and worked eight hours per week. He also said he expected to return to work full-time. Mr Fernando departed on 14 July 2001 as he had forecast but did not return in less than 12 months and has remained in Sri Lanka ever since. Mr Fernando did not supply Centrelink with an overseas address at that time but has furnished his current address to the Tribunal.
19. On the hearing of Mr Fernando’s appeal, on 5 October 2006, the SSAT affirmed that Centrelink had correctly applied the law and, on 7 February 2007, affirmed the decision under review. When Mr Fernando subsequently appealed this decision, on 5 March 2007, the Secretary arranged for the further medical file assessment by WSA mentioned above. .
20. The SSAT did not consider the effect of section 109 of the Act. Subsection 109(1) provides for the date of effect of a favourable decision, as follows:
Date of effect of favourable determination resulting from review
(1) If:
(a) a decision (the original decision) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
21. Mr Fernando applied for review of the arrears decision when he wrote to Centrelink on 8 August 2003. He did not seek review of any arrears decision when his solicitor contacted Centrelink on 12 September 2006 and requested review of the decision to stop paying the DSP from 14 January 2002. It follows that the SSAT did not review any decision about arrears in 2007. Therefore, any determination of the arrears question is not one of the questions before me for the present review. While I consider section 109 appears to limit arrears payment and that entitlement should not be backdated, I have not made a formal decision on this matter as I have no jurisdiction to do so.
22. Mr Fernando wrote to the tribunal for the present review making submissions about his grounds for challenging some of the findings in the decision of the SSAT. He said he had not worked more than one hour per week and disagreed with various other findings. However, he did not provide any further medical reports or any other evidence to substantiate his claims about the hours he worked. Therefore, the best evidence before me are his statements in the claim forms filled out at the time of his applications in 2001 around the time he left Australia. These set out that he was working 8 hours per week. It may be that he has since reduced his hours in 2007 but this does not change his ability to work at the date of application or in the 13 weeks immediately following his application in 2001. Mr Fernando has not provided any new evidence that pertains to his condition and hours of work at the time of application for the DSP. He stated that his blood pressure was high in a submission made on 18 July 2005 but this is not relevant to his claim made in 2001. Mr Fernando made many references to his situation in 2007 and oral evidence apparently given to the SSAT in 2007 that he had not worked more than one hour per week. However, I did not have an opportunity to hear this evidence and am not persuaded by it. I am not able to find, on balance, that these claims and statements are sufficient basis for me to disagree with the findings of the SSAT and to make other findings of fact merely on the basis of unsubstantiated claims.
23. On the basis of the evidence before me, I consider the SSAT was correct in finding that Mr Fernando was not severely disabled when he departed Australia on 14 July 2001, and as a consequence was only entitled to DSP for a period of 26 weeks. However, the SSAT wrongly referred to the end date of this period as 14 January 2006. In my view, Mr Fernando has not shown that he was severely disabled, as that term is defined in the Act, when he departed on 14 July 2001 and is therefore entitled to portability only for 26 weeks after his departure on 14 July 2001. This means his entitlement ends in 2002 as calculated by the original decision maker. The SSAT may have made a typographical error in stating the period ended in 2006. The SSAT also made an obvious typographical error in the penultimate paragraph of its decision. After reciting reasons why it found Mr Fernando was not severely disabled in July 2001, the SSAT mistakenly stated there was “sufficient evidence” to find his impairments prevented him from working 8 hours per week at the time he left Australia. These conflicting statements may have confused Mr Fernando and led to his deciding to appeal.
24. The law which must be applied to determine this question is found in the Act, and in particular, the amendments to the Act inserted by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (No 122, 2003) (the Amending Act). As counsel for the Secretary has written in the facts and contentions, those amendments are now, of course, incorporated into the Act.
25. In some cases international agreements modify the portability rules and may permit indefinite portability, otherwise not available. There is no agreement in place with Sri Lanka. This lacuna is indicated in the Schedules to the Social Security (International Agreements) Act 1999. This means portability in Mr Fernando’s case is determined solely under the Act.
26. The Secretary’s counsel has further explained that the law relating to portability of social security payments has changed several times since 2000. Prior to 20 September 2000, section 1213A provided, in effect, that a person receiving DSP was entitled to unlimited portability if they were severely disabled, and if not, then 12 months. I have incorporated some of the explanation contained in the facts and contentions in my reasons below.
27. Section 1213A was amended in 2000 as a consequence of the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 which left the severely disabled portability DSP provision intact, but otherwise reduced the portability period for DSP recipients to 26 weeks. The 2000 legislation included a savings provision (Clause 128(1) of Schedule 1A), which continued the 52 weeks portability for a person on DSP who was absent from Australia immediately before 20 September 2000 and who, after that date, did not return to Australia for more than 26 weeks. This did not apply to Mr Fernando.
28. After 1 July 2004, a person is entitled to unlimited portability in circumstances where, inter alia, they are terminally ill. However, the only issue in this matter is whether Mr Fernando was "severely disabled", as that term is defined, when he departed Australia on 14 July 2001. If he was severely disabled, then he is entitled to unlimited portability despite his departure on 14 July 2001. As he was not severely disabled, which I have found is the case after taking all the evidence before me into account, Mr Fernando is entitled only to 26 weeks portability of the DSP. This follows inevitably from the provisions of sections 1217 and 23(4B) of the Act.
29. Section 1217 of the Act provided, at the time Mr Fernando left Australia, that a person may receive DSP for an indefinite period while overseas if they are classed as "severely disabled" when they depart Australia.
30. Section 23(4B) of the Act defines a "severely disabled" person as someone who is suffering from;
(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; or
(b) the person is permanently blind
31. The test for "severely disabled" is more stringent than the test for eligibility for DSP. A person may be eligible for DSP, but not severely disabled. The Guide to Social Security Law, sets out policy as:
"A customer is accepted as being severely disabled if their impairment prevents them from:
doing any work for 8 hours a week or more for the next 2 years, and
benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours a week.”
This is in contrast to section 94 of the Act which, at the time Mr Fernando lodged his claim, requires that for a person to be eligible for disability support pension the person must have a "continuing inability to work". "Work” is defined in sub-section 94(5) of the Act as:
"work" means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
32. The tribunal is obliged to observe policy unless there are cogent reasons not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. This has been noted many times by the tribunal, for example, in Re Secretary, Department of Family and Community Services and Walsh (2002) 71 ALD 268.
33. In Mr Fernando’s case, I do not consider that the applicable social security law and policy should be ignored or that its application produces an unjust result. The decision to refuse portability beyond 26 weeks is consistent with cases such as Re Secretary, Department of Social Security and Tsakrios (1994) 79 SSR 1154b (‘Tsakrios’), where the tribunal noted that, although the applicant's physical impairment was disabling enough to qualify her for DSP, it was not so severe that she was totally incapable of undertaking any part-time work. In that case, a combined impairment rating of 35 per cent made by the Commonwealth Medical Officer along with an assessment that the applicant was unable to work for more than 30 hours per week did not preclude the tribunal from concluding that the applicant could at least undertake part-time, light semiskilled or light unskilled work. Further, the tribunal also considered that the applicant could undertake educational or vocational training within the next two years. In Mr Fernando’s case, his impairment rating is substantially less than in Tsakrios, being assessed at 20 points only, according to the reasons of the SSAT in its decision made on 15 September 2004. I have no other assessment before me.
34. The Secretary admits that Mr Fernando has suffered from some medical conditions for some years, and that his depressive condition, which attracted an impairment rating of 20 points, qualify him for DSP. However, there is insufficient medical evidence to conclude, on the balance of probabilities, that Mr Fernando was severely disabled within the meaning of the definition when he departed Australia on 14 July 2001. Rather, the evidence strongly suggests that he was not severely disabled.
35. Medical evidence includes:
(i) Treating doctor's report by Dr Verghis dated 9 April 2001
In this report, Dr Verghis was of the opinion that Mr Fernando was likely to be able to return to part-time work (for at least 8 hours per week) in six to twelve months. He also opined that Mr Fernando was likely to be able to return to face-to-face study for at least fifteen hours per week in six to twelve months.
(ii) Medical report by Dr Verghis dated 20 June 2001
Although this was only a few weeks after the April assessment, Dr Verghis' opinion in June was that Mr Fernando was unable to work permanently for life.
(iii) Treating doctor's report by Dr Verghis dated 4 July 2001
This opinion was consistent with the earlier report in April rather than the June assessment. In July 2001, Dr Verghis noted that Mr Fernando was likely to be able to return to part-time work (for at least eight hours per week) in more than two years and that he was likely to be able to return to face-to-face study for at least fifteen hours per week in more that two years.
(iv) Medical file assessment report by Health Services Australia dated 17 October 2001
In the report of 17 October 2001, the HSA doctor was of the opinion that Mr Fernando was fit to work and study at that time for thirty hours per week. The assessment specified that Mr Fernando could now return to work for at least eight hours per week and that he was then likely to return to face-to-face study for at least fifteen hours per week.
36. The HSA assessment remarked that Mr Fernando required no assistance to enable him to return to work, that he would benefit from vocational and on the job training and that his medical conditions did not prevent him from undertaking or attending training. The assessment also said:
There is insufficient evidence to conclude that Mr Fernando is unfit for work at the present time...the depression claimed by the client in quoted reports by the General Medical Officer (GMO) has not been sighted...these reports were from 1999 so the client needs to be reviewed at present to see his current level of depression...based on the client's current functioning: where he was able to produce these reports for Centrelink that are at least 3 pages long, with 10 attachments; where he has the ability to fly overseas for a wedding and for business; and where he is currently engaged in a business venture importing coir peat, it is concluded that he still has residual work ability.
(v) Medical report by Dr Fernando dated 28 July 2006
Dr Fernando, who is Mr Fernando's brother-in-law and treating doctor in Sri Lanka, opined that Mr Fernando was not capable of doing any work. He went on to say that Mr Fernando would not be in a position to report for work on a regular basis, nor was he able to perform satisfactorily at work. However, unfortunately, Dr Fernando's report does not address Mr Fernando's work capacity in July 2001.
(vi) Medical report dated 5 September 2006
Very early in the September 2006 report, Dr Fernando asserts that the report will focus on Mr Fernando's current health. Dr Fernando makes no reference to Mr Fernando's work capacity in July 2001. It may be that Dr Fernando was not in a position to assess Mr Fernando’s condition and assess his capabilities in 2001, having furnished his reports in 2006.
(vii) Job capacity assessment report dated 1 August 2007
Ms Tam-Lam, an Accredited Rehabilitation Counsellor with WSA set out that Mr Fernando had carried out various tasks related to his importing business from 1997 to July 2001. With all the activities, the assessor observed that Mr Fernando was not severely disabled and he had the ability to work at least eight hours per week at the time he left Australia on 14 July 2001.
37. As I have already set out above, in the claim form lodged at Centrelink on or about 12 July 2001, Mr Fernando declared that he was self-employed at this time, that he was still working for eight hours per week, that he was not of the view that he would lose his job because of an illness or disability and that he expected to return to work full-time. In a letter dated 8 August 2003, Mr Fernando maintained that he travelled to Sri Lanka on the 15 August 2001 with the intention of working for the scheduled Australian Government aided Forestry Project in Sri Lanka. He explained that being an Australian with the winning tenderer, “next week I am applying for another job with an Australian Company...I have made an honest effort to obtain a job”.
38. Furthermore, there is no evidence before the tribunal that Mr Fernando could not undertake a program of assistance or rehabilitation program within the next two years as is provided under sub-section 23(4B) paragraph (a)(ii). In fact, the HSA assessor thought Mr Fernando would benefit from vocational and on the job training and his medical conditions would not prevent him from undertaking or attending training.
39. All of this material makes it plain, in my view, that Mr Fernando had the ability to pursue business activities in Sri Lanka after 14 July 2001 and had capacity to work for at least eight hours each week. I agree with the finding of the SSAT that Mr Fernando could work at least 8 hours a week at the time he left Australia. Further, he was not totally unable to work for the next two years as a result of his impairments, at the time he left Australia and did not satisfy sub-section 23(4B) of the Act.
40. It follows that I find Mr Fernando was not “severely disabled” at the time he left Australia, on 14 July 2001. Therefore, disability support pension was not payable to him indefinitely under the portability rules contained in section 1217 of the Act.
conclusion
41. I agree with the decision of the SSAT made on 7 February 2007, that Mr Fernando was not "severely disabled" as defined in sub-section 23(4B) of the Act when he departed Australia on 14 July 2001, and therefore was entitled to payment of DSP for a period of 26 weeks only. However, as the end date was wrongly set out by the SSAT as 14 January 2006, I will vary the decision by finding the end date was that originally calculated by Centrelink, that is, 14 January 2002.
decision
42. The decision under review is varied. I find that Mr Fernando was not “severely disabled” as defined under the Social Security Act 1991 when he departed Australia on 14 July 2001 and that he therefore was entitled to payment of disability support pension for a period of 26 weeks only after his departure.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: ........................[Sgd]............................
Jennifer Wong, AssociateDate of Hearing: Hearing on the papers
Date of Decision: 30 April 2008
Advocate for the Applicant: Self-representedAdvocate for the Respondent: Ms A Garcia, Centrelink Legal Services
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