Foster and Secretary, Department of Employment and Workplace Relations

[2006] AATA 983

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 983

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2006/602

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALAN FOSTER

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS  

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date21 November 2006

PlaceMelbourne

Decision The decision under review is affirmed.

..............................................

Senior Member

SOCIAL SECURITY ‑ portability of pension – s1218AA of Social Security Act – all parts must be satisfied ‑ applicant does not suffer a terminal illness – decision affirmed

Social Security Act 1991 (Cth) s23(4B), s1218AA

Re Aguilar-Trejo and Anor and Secretary, Department of Family and community Service [2005] AATA 734

Re Toseska and Secretary, Department of Family and community Services [2005] AATA 386

REASONS FOR DECISION

21 November 2006   Mr John Handley, Senior Member

1.      The Social Security Act 1991 (the Act) permits “portability” of certain types of pensions and benefits.  This means that persons are permitted to be absent from Australia whilst in receipt of pension or benefit but for a limited period of time.  In the case of persons who receive disability support pension (DSP), the portability is limited to a period of 13 weeks.  Mr Foster, the applicant in these proceedings, is one such person.

2.      The circumstance of this application are very unfortunate but having heard his case, having read the relevant documents, having heard from Mr Wee who appeared on behalf of the Secretary and having regard to the applicable legislation, the decision of the Social Security Appeals Tribunal (SSAT) under review in these proceedings must be affirmed.

3.      The circumstances giving rise to this application may be briefly summarised as follows.

4.      In July 1996, Mr Foster suffered a massive cerebral haemorrhage whilst on holidays in the United Kingdom.  Thereafter he was treated extensively both in England and in Australia.  He qualified for a DSP in 1998 and continues to receive it.  The extent of the cerebral haemorrhage has caused him to have restriction and loss of use of his left arm and shoulder, both his legs and has caused loss of vision.  He has no difficulty with verbal communication but has impaired comprehension and impairment of decision-making.  On 18 October 2006, he was assessed by Health Services Australia as having a total impairment rating of 50.  (The minimum impairment rating under s94 of the Act in order to qualify for DSP is 20).

5.      In 1999, Mr Foster travelled to, and has subsequently resided, in Thailand.  He intended then to work as a tour operator and / or tour guide, either as a salaried person for a travel organisation or on his own account.  He continues to hold that intention although work opportunities to date have been very limited.  By reason of the cost of living in Thailand, Mr Foster is more than adequately able to maintain himself, on the pension that he has received to date.

6.      In 2005, Mr Foster said that the legislation was amended to prohibit being absent from Australia on a permanent basis whilst continuing to qualify for payment of pension.  He said the portability rules were then introduced and he subsequently returns to Australia every 13 weeks in order to maintain continuity of pension payments.  This has caused him considerable expense which he would prefer to avoid.  (In Re Aguilar-Trejo and Anor and Secretary, Department of Family and community Service [2005] AATA 734 Dr K Levy, a Member of the Tribunal decided that portability rights existing before the Act was amended in 2004 did not accrue and persons subsequently became subject to the provisions of s1218AA).

7.      Portability of pension can be waived under s1218AA of the Act.  That provision permits the Secretary to determine that a claimant’s maximum portability period for the purposes of DSP can be an unlimited period but only if all of the following circumstances exist:

(a)the person is severely disabled (see subsection 23(4B)); and 

(b)the person is receiving disability support pension; and 

(c)the person is terminally ill; and 

(d)the person’s absence from Australia is or will be permanent; and 

(e)the purpose of the person’s absence is: 

(i)     to be with or near a family member of the person (see subsection 23(14)); or 

(ii)    to return to the person’s country of origin.

8.      The term “severely disabled” is defined at s23(4B) of the Act in the following terms:

(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. 

9.      The concept of “work” was discussed during the hearing.  The assessment completed by Health Services Australia on 18 October 2006 concludes with the opinion that Mr Foster has a current capacity for work between 8 and 14 hours per week.  On the evidence heard in these proceedings that assessment would have to be regarded as being optimistic.  Mr Foster has physical restrictions affecting his left arm and shoulder, his legs and poor vision.  He has poor concentration, limited decision-making capacity and poor memory.  He is certainly a pleasant and a (very) articulate man but I think it is unlikely that he could realistically be assessed as having a capacity for work.  It is now more than 10 years since he suffered his cerebral haemorrhage and although he did benefit from having extensive specialist treatment subsequently, he does have muscle cramping from time to time and pain in his legs and arm.  I do think that it is unlikely that he could work in the future and I am satisfied that he is totally unable to work for at least the next two years.  There is no evidence which would permit a finding of whether he would be unable to benefit within the next two years from participating in the program of assistance or rehabilitation.  Little will turn on this provision because all of the parts of s1218AA must be satisfied.

10.     Mr Foster is not terminally ill.  I specifically asked him to consider that part of the section of the Act and I am satisfied that he understood the meaning of the words.  There is no evidence lodged or filed which would indicate that he has been diagnosed with or suffers a terminal illness.  He certainly has extensive disabilities which will incapacitate and hinder him into the future but nothing points to any of those illnesses being of a terminal nature.

11.     The words “terminally ill” are not defined by the Act.  The Social Security Guide refers to a life expectancy of 24 months or less as an aid to interpreting these words.  Professor J H Maynard, a former member of this Tribunal – being a medical practitioner and pathologist – adopted the Shorter Oxford English Dictionary meaning of these words as “last stages of a fatal disease”, (refer Re Toseska and Secretary, Department of Family and community Services [2005] AATA 386 at paragraph 20).

12.     I think that is an appropriate definition.  The words “last stages” are referable to the word “terminal”.  The “fatal disease” is the “illness”.  Fortunately, these words do not apply to Mr Foster.  It would appear that he has made a good recovery from his cerebral haemorrhage, although being left with limitations.

13.     Mr Foster said that he lives in Thailand because most of his friends live nearby and he finds it easier to manage economically – by reason of the cost of living – in Thailand than in Australia.  But his preference would be to live in Australia and he regards Australia as being his permanent home.  That is to say, he does not intend to live in Thailand permanently.  He has not taken out Thai citizenship and is permitted to live in Thailand by reason of a business visa which is issued 12 monthly.

14.     The purpose of Mr Foster’s absence of Australia is not to be near or with family members – because they all live in Australia.  Additionally, his country of origin is Australia.  The remaining part of s1218AA(e) of the Act is also not satisfied.

15.     Mr Foster needs to satisfy all of the parts of s1218AA of the Act.  He does not satisfy all of the parts.  Accordingly there is no legal opportunity for him to be granted a maximum portability period being of an unlimited period within the meaning of s1218AA of the Act.

16.     It seemed to me, having heard Mr Foster at the hearing, that his unhappiness concerns having to travel to Australia, every 13 weeks, from Thailand, where he has chosen to live.  But he does so as a consequence of the legislation, which is not reviewable.  Only a decision made pursuant to that legislation, subsequently affirmed by the SSAT, is reviewable.  For the reasons given above, that decision is, on the facts of this application, to be affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:         .....................................................................................
  Personal Assistant

Date of Hearing  15 November 2006
Date of Decision  21 November 2006
Solicitor for the Applicant          Self Represented
Solicitor for the Respondent     Phillips Fox