Fernando and Secretary, Department of Family and Community Services

[2005] AATA 1189

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1189

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1391

)  

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTOPHER FERNANDO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N. Isenberg, Member

Date2 December 2005

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal is affirmed and Centrelink is obliged to pay Mr Fernando disability support pension from 28 March 2001 until 13 January 2002. 

[SGD] Ms N. Isenberg
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – Applicant entitled to disability support pension – dissatisfied with Centrelink’s actions – no jurisdiction to review – Applicant departed Australia – portability of pension – period of portability - no severe disability – decision affirmed

Social Security Act 1991 – ss.23, 1213, 1217 , Schedule 1B

REASONS FOR DECISION

2 December 2005 Ms N. Isenberg, Member

DECISION UNDER REVIEW

1. This is an application by Mr Fernando for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 15 September 2004 regarding his claim for the disability support pension (“DSP”). The SSAT set aside the decision of an Authorised Review Officer (“ARO”) and sent the matter back for reconsideration with a direction that Mr Fernando had physical and psychiatric impairments, his impairment was of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”), he had a continuing inability to work for at least 30 hours per week, and that subject to meeting all other eligibility requirements, he was entitled to the DSP from the date of his claim.

THE HEARING

2.      In accordance with Mr Fernando’s request, a hearing was conducted on the papers.  In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), further correspondence had been received from both parties outlining their contentions.

ISSUES BEFORE THE TRIBUNAL

3.      It was difficult for me to ascertain about what Mr Fernando complains, given that the SSAT had determined the issue of his entitlement to DSP in his favour, Centrelink has accepted the SSAT's decision, has implemented the decision, and has attempted to pay Mr Fernando.

4.      Mr Fernando’s application to this Tribunal (T1) sets out various parts of the SSAT decision with which he is apparently dissatisfied.  Mr Fernando appears to be unhappy with the way that Centrelink treated his initial claim for DSP, unhappy with the manner in which the claim was reviewed by Centrelink, and unhappy with the medical report by Dr Ying of HSA.

5.      Whilst Mr Fernando is entitled to disagree with the way that Centrelink has acted, such actions do not constitute reviewable decisions, for the purposes of social security law.

6.      The Tribunal does not have jurisdiction to review Mr Fernando’s complaints, as contained in his application to the Tribunal.  Any complaints by Mr Fernando regarding Centrelink's actions in sending him letters, arranging appointments or the manner in which decisions were reviewed are more properly dealt with by the Commonwealth Ombudsman.  I understand Mr Fernando to have adopted that course.

7.      From the papers I understand Mr Fernando to contend that he should have received payment for the full period between the date of his DSP application and the SSAT decision. I do not consider there to be an issue as to jurisdiction of the Tribunal as the SSAT’s decision had included a proviso:

“… Subject to meeting all other eligibility requirements therefore, he is qualified for disability support pension from that date.” (Tribunal’s emphasis)

In view of that proviso I have therefore considered his continuing entitlement to DSP.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

8.      In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

9.      The following is extracted from the Respondent’s Statement of Facts and Contentions and accurately sets out the history of the matter:

·On 10 April 2001, Mr Fernando lodged a claim for DSP (T7). The claim was accompanied by a Treating Doctor's Report by Dr T. Verghis dated 9 April 2001 (T6A).

·Following receipt of the DSP claim, Centrelink arranged an appointment for Mr Fernando with a medical advisor with Health Services Australia (“HSA”) for 2 August 2001.

·On 11 July 2001, Mr Fernando contacted Centrelink to advise that he was travelling to Sri Lanka, and may be away for up to one year (T15).

·Mr Fernando did not attend the HSA appointment as he had left Australia for Sri Lanka on 14 July 2001.

·As Mr Fernando failed to attend the HSA appointment, his DSP claim was rejected by Centrelink on 2 August 2001 (T21).

·On 8 August 2001, Mr Fernando wrote to Centrelink and requested that he be given an appointment with HSA between 15 January 2002 and 31 January 2002, when he would be able to travel to Sydney (T22).

·Centrelink took Mr Fernando's letter as a request for a review of the decision to reject his DSP claim, and referred Mr Fernando's medical file to HSA for review. On 17 October 2001, Dr Ying of HSA noted that Mr Fernando suffered from hypertension, depression and sleep apnoea, and allocated a total impairment rating of 10 points under Table 20 of the Impairment Tables in Schedule 1B of the Act (T25/135). Dr Ying also noted that there was insufficient evidence to conclude that Mr Fernando was possessed of a continuing inability to work (T24/128 and T25/143).

·On 9 November 2001, the Original Decision Maker again rejected Mr Fernando’s DSP claim (T26).

·On 8 August 2003, Mr Fernando again wrote to Centrelink, and sought to be granted DSP and receive arrears for the period since July 2001 (T27).

·On 30 January 2004, Mr Fernando wrote to the Commonwealth Ombudsman, and requested that he investigate the case (T28).

·On 4 February 2004, Centrelink again decided to reject Mr Fernando’s claim for DSP (T29), and the matter was referred to an ARO for further consideration.  The ARO affirmed the decision to reject Mr Fernando’s DSP claim on 4 March 2004, on the basis that Mr Fernando had only been assessed as having 10 points under Impairment Table 20.  Accordingly, he was not qualified to receive DSP (T30).

·On 2 June 2004, Mr Fernando wrote to the SSAT, requesting that it review Centrelink's decision to reject his DSP claim (T34).

·On 15 September 2004 the SSAT decided to set aside Centrelink's decision, and substituted a decision that Mr Fernando was qualified for DSP, as his depression attracted a rating of 20 points under Table 6 of the Impairment Tables in Schedule 1B of the Act. The SSAT also decided that Mr Fernando’s condition prevented him from being able to work or re-train within two years, and thus he also had a continuing inability to work (T2).

·Notwithstanding the SSAT decision in his favour, Mr Fernando appealed to the Administrative Appeals Tribunal on 25 October 2004 (T1).

·Following the SSAT decision, Centrelink was obliged to pay Mr Fernando DSP from 28 March 2001.

·However, as Mr Fernando had departed Australia on 14 July 2001, payment of his DSP ceased with effect from 13 January 2002, as the DSP portability provisions prohibited payment if a customer was overseas for a period greater than 26 weeks.  Mr Fernando was sent a letter to this effect on 29 November 2004.

·In accordance with the SSAT decision, Centrelink attempted to pay Mr Fernando $3,220.82 in DSP arrears on 1 December 2004 for the period 28 March 2001 to 13 January 2002.  However, the payment was rejected and could not be deposited into Mr Fernando’s bank account.  Centrelink then sent Mr Fernando a cheque for the arrears amount on 7 January 2005.

·Mr Fernando’s daughter returned the cheque to Centrelink on 27 January 2005, as her father believed that he should have received payment for the full period between the date of his DSP application and the SSAT decision.

10. There is no dispute that Mr Fernando meets all requirements for the DSP. However, continuing payment of DSP depends essentially on his continued residence. In my view, his ongoing entitlement, in accordance with the decision of the SSAT, requires consideration of his entitlement having regard to the portability provisions of the Act.

11. Many social security payments are subject to portability provisions, that is, legislation that controls the length of time a pension or benefit may continue to be paid to a person whilst that person is overseas. Section 1213 of the Act states that the portability provisions contained in Division 2 of the Act apply to a person who is either receiving a portability-affected payment prior to travelling overseas, or who is granted a payment whilst overseas. The payments affected by the portability provisions are set out in section 1217 of the Act and include DSP.

12.     At the time that Mr Fernando travelled overseas (14 July 2001), DSP was portable for a maximum of 26 weeks, unless, relevantly, the person was “severely disabled”, in which case the portability period was unlimited.

13. The phrase "severely disabled" is defined in section 23(4B) of the Act as follows:

23(4B)  For the purposes of this Act, 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; or

(b)  …

(Tribunal’s emphasis added)

14.     Centrelink contended that Mr Fernando is not "severely disabled", as defined in the Act. Whilst there was no dispute that Mr Fernando has a disability, it has been assigned only 20 points under Impairment Table 6 in Schedule 1B of the Act.

15.     Whilst the SSAT considered that Mr Fernando had a continuing inability to work, it was not considered that this would entirely prevent him from undertaking some study or retraining.  The SSAT considered that his disability would be sufficient to preclude him from working more than 30 hours per week (T2/10).  This is the test the SSAT was obliged to apply.

16.     It should be noted that the test in relation to ability to work is different for entitlement to the DSP and for the purpose presently under consideration.  For the purposes of consideration under the portability provisions an Applicant must, as noted above, be totally unable to work.

17.     Mr Fernando’s present treating doctor, his brother-in-law, Dr Joel Fernando gave evidence to the SSAT that the Applicant currently suffers stress related reactive depression.  His evidence to the SSAT was that while he considered the Applicant’s condition to be worsening, Mr Fernando is no longer medicated, and although he has been referred to a psychiatrist, Dr Kalayanagam, he does not see him regularly. No report was provided by the psychiatrist.

18.     Dr Ying of HSA was of the opinion that Mr Fernando would be capable of retraining or undertaking some light work (T25/143).  In letters to the SSAT Mr Fernando wrote of being self-employed in imports.  His original treating doctor, Dr Verghis also wrote of this (T12/71).

19.     In view of Mr Fernando’s own evidence that during the relevant period his condition did not prevent him from undertaking some work I do not consider him to be ‘severely disabled’ as defined in the Act.

20. Therefore I find that the portability rules set out in section 1217 of the Act apply to Mr Fernando, and that Centrelink, in its implementation of the SSAT decision, was correct to cease payment of DSP after Mr Fernando had been absent from Australia for 26 weeks.

DECISION

21.     The decision of the SSAT is affirmed and Centrelink is obliged to pay Mr Fernando DSP from 28 March 2001 until 13 January 2002.

I certify that the preceding 21 paragraphs are a true copy of the decision and reasons for decision of Ms N. Isenberg, Member:

Signed:         A. Garcia
          ..................................................................................……………………………….

Associate

Date of Hearing on the Papers                  1 November 2005

Date of Decision  2 December 2005

Representative of the Applicant                 self represented      

Representative of the Respondent           Mr J. Howard