Goncalves; Secretary, Department of Family and Community Services

[2004] AATA 4

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 4

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/227

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And MS SARA GONCALVES

Respondent

DECISION

Tribunal Dr P A Staer, Member

Date7 January 2004

PlacePerth

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal of 9 May 2003.

..........(sgd P A Staer)...............

Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – portability – definition of ‘severely disabled’ – 8 hours work per week

REASONS FOR DECISION

7 January 2004  Dr P A Staer, Member

INTRODUCTION

1. This is an application to the Administrative Appeals Tribunal (“the Tribunal”) by the Secretary of the Department of Family and Community Services (“the applicant”), for a review of the decision of the Social Security Appeals Tribunal on 9 May 2003 that Ms. Sara Goncalves, (“the respondent”), claim for Disability Support Pension be reassessed on the basis that she satisfies sections 23(4B) and 1217 of the Social Security Act 1991 (“the Act”) and has done so since the date of the decision.

2. The issue before the Tribunal is whether Mrs Goncalves is “severely disabled” as defined by section 23(4B) of the Act

3. The parties are agreed that if she satisfies section 23(4B) of the Act then she is entitled to receive her Disability Support Pension for an indefinite period overseas in accordance with section 1217 of the Act..

HEARING

4.      The Tribunal convened at Perth on 30 October 2003.  The applicant was represented by Mr Chris Ward  and the respondent by Mr. Alvaro Goncalves, the respondent’s son.

5.      A Directions Hearing was held 16 December 2003 to table and discuss further evidence in relation to  the Departments, “Guide to Social Security Law” relating to Severely disabled (DSP) A3

6.      The Section 37 Documents (T1-T17) were before the Tribunal.

7.      Documents taken as Exhibits were;

Exhibit A1Tables for the assessment of work-relayed impairment for Disability Support Pension, Department of Social Security, 1997. Schedule 1B

Exhibit A2Six pages of file notes by the Department, dated:

7 May 2001

27 August 2002

12 September 2002 (4 pages)

Exhibit A3Letter addressed to the Tribunal from Centrelink 9 December 2003 in regard Guide to Social Security Law, 1.1S.110 Severely disabled (DSP) 5 pages.

Exhibit R1Medical report from Dr. Amancio R. Santos, from Portugal, with translation.      

BACKGROUND

8.      The Goncalves family came to Australia in September 1990. Mrs Goncalves worked as a cleaner with a Portugese cleaning company until 1997. She was granted a Disability Support Pension on 7 May 2001. (A2) On or about 27 August 2002 Mrs Goncalves advised Centrelink she wished to return to Portugal permanently.

9. Centrelink carried out an assessment as to whether Mrs Goncalves was “severely disabled” in accordance with section 23(4B) of the Social Security Act 1991. A decision was made on 12 September 2002 that she was not “severely disabled” and accordingly the maximum period she could be paid Disability Support Pension while overseas was 26 weeks from the date of departure from Australia. (A2)

10.     On 18 October 2002 Mrs Goncalves departed Australia for permanent residence in Portugal.

11.     On 19 December 2002, through her son, Alvaro, Mrs Goncalves requested a review of the decision and it was affirmed by an authorised review officer.

12.     On 5 March 2003 Mrs Goncalves requested a review of the decision by the SSAT.

13.     On 18 April 2003 at the expiry of the 26 week period after her departure the Disability Support Pension was ceased.

14. On 9 May 2003 the Social Security Appeals Tribunal (SSAT) set aside Centrelink’s original decision on the basis that Mrs Goncalves is severely disabled and satisfies sections 23(4B) and 1227 of the Social Security Act.

15.     On 10 June 2003 the Secretary, Department of Family and Community Services appealed the decision to the Administrative Appeals Tribunal

Mr. Alvaro Goncalves

16.     Mr Goncalves gave oral evidence.  He returned last month from having spent three months with his parents in Portugal.  He told the Tribunal that his parents live in a small village in the north of Portugal.  The nearest delicatessen is 10 kilometres away and the nearest town where one can buy bread or consult a doctor is 30 kilometres away.

17.     He said that his mother's medical condition was deteriorating and that she was only able to do a small amount of cleaning, cooking and housework when she had good days.  Some days she would have to stay in bed all day.  Her husband does the driving and the shopping.  He said that sitting in one position for any length of time causes his mother discomfort and it would be very difficult for her to undertake another plane journey to Australia.  He stated that they were living on his fathers age pension with a little support from a small pension drawn by the grandmother who lives with them.  The cost of living is high and without further monetary support they may have to sell their house in Australia or return to Australia where the cost of living is cheaper and Mrs Goncalves would be able to continue her Disability Support Pension.

Dr. R. Bernado

18.     On 18 May 2001, Dr Barnardo, Mrs Goncalves treating doctor since 1997, filled in a form for Centrelink in which he indicated it would be more than two years before his patient would be able to return to work of any kind, it would also be more than two years before she would be able to return to face-to-face study, That she is unable to work full days because of endurance problems, that she has substantially reduced dexterity and that language and communication difficulties were significant.  The overall picture of this assessment is of a woman who was unable to work at that time and would be most unlikely to work in the future. (T5)

Dr. M. Shaw

19.     On 6 June 2001 Mrs Goncalves was examined by a Doctor Shaw of Health Services Australia.  He also reported that because the back pain it would  be more than two years before Mrs Goncalves would return to her usual work or study load.  His report is somewhat contradictory in that at , 

Question 8.  “How many hours is the person fit to work or study now”,          He wrote  “0 hrs per week”

At Question 12   “When is the person likely to be able  to return to any kind of work – not just their last job”. For Part-time (for at least 8 hrs per week)       He recorded “now”.

He also agreed that she would be unable to work full days because of endurance problems but indicated she could manipulate objects without difficulty although she would be unable to lift and carry objects.

20.     In his written summary he said:

“57 year old lady with degenerative changes in thoracic and lower back causing pain and restriction of movement.  On examination and neck also was restricted  in movement with pain in their shoulders and neck.  She takes NSAIDS and analgesics to relieve pain. She also has osteo-arthritis of both knees with some restriction of knee flexion and crepitis  on examination. She is unable to bend, kneel or squat. This  lady is unfit for all physical work and would also be unable to cope with sedentary type work if she could obtain it. (she speaks no English).  She would not be suitable to retrain because of the lack of English and her physical limitations.

Doctor Shaw saw a very limited capacity for work in this lady. (T7)

Dr. B. Price

21.     15 months later on 5 September 2002  Mrs Goncalves was examined by a Dr Price, of Mayne Health  He filled in a form for Centrelink as the treating doctor but it was the first time he had seen the patient.  He indicated it would be more than two years before the patient was likely to return to work or to face-to-face study.  He indicated she has constraints in mobility and reduction of dexterity.  He felt her communication levels were good but also confirmed she was unable to lift, carry and move objects. (T10)

22.     On 13 September 2002 Dr Price was phoned by Centrelink in relation to his report.  He stated in the file note,  “…it was inappropriate for him to comment on cust’s condition as he did not realise the implication of this form….he had not seen he did not re the cust before this….Dr Price further stated it is his tentative opinion that cust is able to work at least eight hours per week. (T12)

Ms. Kirsten Wade

23.     Kirsten Wade, an occupational therapist, reviewed Mrs Goncalves on the 18th October 2002.  She gave an extensive written report.  Ms Wade assessed Mrs Gonzales work capacity as 0-7 hours per week of the time of examination, that it would be 8-14 hours per week within six months but would remain at that level for two years.  Under type of work she stated;

“Light less skilled/semiskilled. Example light, sedentary work such a sales, retail telephone, administrative (cultural specific). Customer completes fairly sedentary activities during the day and she can sit  1-2 hours.  Pain levels fluctuated day by day..   Note that for all of the above language would be a difficulty”.

She further stated;

Customer is not motivated to work in any capacity, reports pain is too severe at times during a week and language is a barrier.  Customer advises flies to Portugal 19 October 2002 with her husband.  Customer may be unreliable at work due to episodes of more severe pain however she has no other strategies to manage pain aside from medication.  Customer left school at the age of 10 years and has worked only as a cleaner since this time.  Customer is 56 years of age.  Customer reported she can't work in any capacity or undertake training and needs to  “get the pension “ for when she is in Portugal (?) (T14)

Dr. Amancio R. Santos

24.     The medical certificate of Dr. Santos (R1), translated from Portugese lists Mrs Goncalves medical conditions and then states,

“These make her increasingly incapable of any activity and incapable of earning a living, needing the help of another person to fufil some daily life tasks”.

THE LEGISLATION

“1. Section 1217 of the Social Security Act 1991 provides that for a person to receive Disability Support Pension for an indefinite period while overseas they must be classified as ‘severely disabled’. (T3, page 7)

2. Section 23(4B) of the Social Security Act 1991 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 a least the next 2 years; and

(ii)unable to beneifit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(b)       the person is permanently blind.”

25.     Centrelink’s Guide to Social Security Law

1.1.S110 Severely disabled (DSP) further states:

“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”

Submissions

26.     By the Applicant in his Statement of Facts and Contentions:

“3.       The secretary notes that subsection (a) specifically provides that the determination as to whether a person is unable to benefit within two years from participation in a program of assistance or rehabilitation is to be made without taking into account any other factor, other then physical, psychiatric or intellectual impairments.

4.        The Secretary contends that the decision of the Social Security Appeals Tribunal made on 9 May 2003 is incorrect at law.  Under the heading, ‘Discussion of Evidence’ the Tribunal states that;

The Tribunal considered the report of K Wade and in particular did not agree Mrs Goncalves could engage in “light less skilled/semi skilled” work.  In reaching this view, the Tribunal took into account her age, her disability with the use of English, her semi illiterate status in her native language, her lack of skills and her medical impairments.  For all the reasons mentioned above, the Tribunal is satisfied that with her disabilities Mrs Goncalves would not be suitable for retaining at all.  She had attended an English course and had not progressed beyond learning the usual greetings to cope in an English speaking environment.

Therefore, the Secretary contends, the Tribunal has considered irrelevant factors in its application of section 23(4B) of the Social Security Act 1991 to Mrs Goncalves circumstances.

27.     The Tribunal agrees with these contentions of the Secretary.  The SSAT had taken into account “other factors” in reaching their decision.

Discussion

28.     However the Tribunal still has to consider whether Mrs Goncalves was severely disabled at the time the original decision was made and if she continues to be severely disabled.

29.     The legislation does not define “severely disabled” but the uncovering of the Departmental Guide after the initial hearing gives the Tribunal a better foundation on which to make a decision. The Tribunal follows the reasoning of the Federal Magistrates Court of Australia, McInnis FM in Materek v DFACS [2003] FMCA 14.

“…For the purpose of this act a person is severely disabled if: (a) a physical impairment, a psychiatric impairment, an intellectual impairment or two or all of such impairments of the person make the person, without taking into account any other factor, totally unable: (I) to work for a least the next two years; and (ii) unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program.

17.  It is clear from the reading of that section that the legislation does not in fact define what is meant by “severely disabled” in the manner described by the tribunal; that  is, the legislation does not define “severely disabled” as being “unable to work for the next two years up to eight hours per week”.  (emphasis added)

18.      The reference in fact to the concept of ‘up to eight hours per week’ was introduced by a policy of the respondent referred to by the decision of the respondent which appears at page 84 of the appeal book.  In that document the author correctly, in my view, sets out what section 23(4)B defines as being “severely disabled” and goes on to say the following:

“The policy that Centrelink uses says that if you can’t do any type of work for 8 hours a week, then you can be accepted as severely disabled (Chapter 1.S110 of the Guide to the Interpretation of the Act).

19.      I accept for the purposes of the present application that that policy was in existence at all relevant times and that it was a policy that is indeed relevant to the consideration of the present application.  Indeed, if the policy of the respondent had not been taken into account or had been misapplied, then the failure to recognise the existences and the content of that policy may well constitute a relevant fact which the tribunal would otherwise be bound to consider.  Indeed a misconstruction of terms or misunderstanding of any policy may, in my view, constitute a failure to take into account a relevant factor which certainly would have the potential of vitiating the tribunal’s decision.  I refer to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) (Fed C of A Full Court 62 of 1992, 29 April 1994 unreported).”

30.     All of the doctors and Ms Wade agree that at the time of her leaving Australia Mrs Goncalves was, because of her medical disabilities unable to work 8 hours per week. The further questions to be answered by the Tribunal are:

1.Will the inability to work for at least 8 hours per week continue for the next two years.

2.Would Mrs Goncalves benefit  within the next 2 years from participation in a program of assistance or a rehabilitation program.

31.     Drs Bernado and Santos, both treating doctors, say “No”.. Dr. Shaw in filling the form goes both ways but in summary writes, “This lady is unfit for all physical work and would also be unable to cope with sedentary type work if she could obtain it”. Dr. Price also said “No” but “tentatively” changed his mind after being telephoned by the Department. Only Ms. Wade allows that after 6 months Mrs Goncalves could work 8-14 hours per week for more than 24 months.

32.     The Tribunal was not helped in that none of the persons whose opinions were being relied upon were called to give evidence and therefore to be cross examined. Taking the documentary evidence as a whole the Tribunal finds as a matter of fact the Respondent was severely disabled at the time of her leaving Australia, continues to be so and will remain so indefinitely.

33.     For the reasons set out above, which are different from those of the SSAT, the Tribunal affirms the decision of the SSAT made on 9 May 2003.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P A Staer, Member

Signed:         ..........………...................................  Associate

Date/s of Hearing  30 October 2003
Date of Decision  7 January 2004
Counsel for the Applicant         Mr C Ward
Solicitor for the Applicant          Service Recovery Team, Centrelink
Advocate for the Respondent   Mr A Goncalves