Gonzalez and Secretary, Department of Family and Community Services

[2004] AATA 879

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/107

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HECTOR GONZALEZ

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date20 August 2004

PlaceHobart

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal to reject Mr Gonzalez disability support pension because he was not severely disabled at 12 January 2001 when he departed Australia.

[Miss Mary Imlach]

Senior Member

CATCHWORDS

Social Security - overseas disability support pension - portability period - severe disability on departure.

Social Security Act 1991 – ss23(4B),94(5),1217

REASONS FOR DECISION

20 August 2004 Miss Mary Imlach (Senior Member)         

Decision Under Review

1.      The decision under review is a Centrelink decision made on 22 March 2002 and subsequently affirmed by the Social Security Appeals Tribunal (SSAT) decision made on 14 April 2003 to reject Mr Gonzalez’s disability support pension because Mr Gonzalez is not severely disabled.

2.      Mr Gonzalez lives in Colombia and was unable to attend the Tribunal hearing.   On 21 August 2003 Mr Gonzalez elected to have his application heard by the Tribunal on the basis of the papers available to it.

History

3.      Mr Gonzalez is a 62 year old man who arrived in Australia on 10 April 1972.   He was granted a disability support pension on 25 January 1996.

4.      On 13 November 1998 his disability support pension was cancelled when a Health Services Australia doctor found his arthritis of the lumbosacral spine attracted 10 points under Table 5.2 and his glaucoma, peptic ulcer and arthritic shoulders and neck rated 0 points.   This decision was set aside on review on 24 December 1998 when Mr Gonzalez was granted portability of the disability support pension for 12 months  whilst overseas.

5.      Mr Gonzalez left Australia on 18 November 1998 for Colombia where he now resides.   He returned to Australia in 1999 in order to continue to qualify for the disability support pension.   He again returned to Australia in December 2000.   He left Australia finally on 12 January 2001.

6.      His disability support pension was cancelled belatedly with effect from 22 March 2002.   A letter advising Mr Gonzalez that his pension had been cancelled was sent to him on 13 March 2002.

7.      Mr Gonzalez sought a review of this decision on 15 October 2002.   The original decision-maker affirmed the decision of Centrelink on 27 October 2002.

8.      The matter was passed to an authorised review officer, who affirmed Centrelink’s decision on 11 November 2002.   The authorised review officer concluded that Mr Gonzalez condition did not fulfil the criteria for a permanently portable disability support pension because his medical condition did not provide enough evidence that Mr Gonzalez was severely disabled when he left Australia on 12 January 2001.

9.      Mr Gonzalez appealed to the SSAT by letter received on 2 January 2003.

10.     The SSAT decided on 14 April 2003 to affirm the decision to reject Mr Gonzalez disability support pension because he was not severely disabled.

11.     On 5 June 2003 Mr Gonzalez appealed the decision to the Administrative Appeals Tribunal.

Issues

12.     The issue in this case is whether Mr Gonzalez was severely disabled when he left Australia on 12 January 2001.

Legislation

13. The relevant legislation is s1217 of the Social Security Act 1991 (“the Act”) which provides that a person may receive a disability support pension for an indefinite period while overseas if they are classified as “severely disabled” when they depart from Australia.

14. 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.”

15.     The test for being “severely disabled” is more stringent than the test for eligibility for disability support pension.    A person may be eligible for disability support pension but not severely disabled.   The Guide to the Social Security Law, a policy guide of the Department of Family and Community Services, states that:

“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 two years; and

·benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours a week. (Attachment 8)”

16. This is in contrast to s94 of the Act which 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 s94(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.”

Documents

17.     The Tribunal had regard to Mr Gonzalez electronic and paper file in making its decision.

18.     Mr Gonzalez provided additional documents to the Tribunal from medical practitioners dating from 17 February 2002 to 5 March 2003 confirming that he still has polyarthritis causing pain in his neck, back, shoulders and knees.

19.     The Tribunal also looked at Mr Gonzalez  medical reports, results of x-ray and ultrasound reports and Health Services Australia’s evidence.

20.     On the first two examinations of the applicant by doctors from Health Services Australia, Mr Gonzalez did not rate 20 points under the impairment tables.   Centrelink properly accepted the applicant as qualifying on the report from his specialist.   On the second examination when the doctors noted only 15 points, Centrelink maintained him on disability support pension without comment.   It can only be concluded from this conflict of medical evidence that Mr Gonzalez qualification for disability support pension has been marginal.

21.     The most recent examination by Health Services Australia on 2 December 1999 found Mr Gonzalez was fit for light work for at least 8 hours a week.

22.     Mr Gonzalez claims that when he returned to Australia in December 2000, he told Centrelink that he was going overseas again and was told by Centrelink that it would no longer be necessary for him to return to Australia to maintain his pension in view of his age of 60 years and his poor health.

23.     The Centrelink computer record of the contact with the applicant comments “he is going back overseas about 10/1/01.   He wants payments to continue overseas.   He is not severely disabled but can be paid at the 12 months under old legislation.”

24.     The need for portability interview was discussed with the applicant on 9 January 2001 and he was to call Centrelink back.   The applicant did not attend the portability interview which he was required to attend before leaving the country.

25.     There was no evidence to suggest that Mr Gonzalez had been told that he now qualified permanently for a disability support pension overseas.   Had Mr Gonzalez attended the portability interview, no doubt the matter of his permanent qualification for a disability support pension would have been discussed.

Application of the Law

26.     The legislation applicable to Mr Gonzalez case is:

· Section 94 of the Social Security Act 1991 which deals with whether Mr Gonzalez is eligible for a disability support pension.

· Section 23(4B) which deals with whether his disability support pension would be portable indefinitely; and

· Schedule 1B of the Act which contains the impairment tables under which Mr Gonzalez disability is rated.

27. Section 94(1)(a) of the Act states that he must have a physical, intellectual or psychiatric impairment. Section 94(1)(b) states that the impairment must be 20 points or more under the impairment tables and s94(1)(c) states that he must have a continuing inability to work as a result of his impairment.

28. The Tribunal found on the evidence before it that Mr Gonzalez has permanent medical conditions of bilateral rotator cuff syndrome, cervical spondylosis, lumbar spondylosis and a peptic ulcer. He satisfies therefore the requirements of s 94(1)(a) of the Act.

29. In order to qualify for a disability support pension, a rating of 20 points or more is required under the impairment tables. The evidence supplied to the Tribunal showed that Mr Gonzalez condition of lumbar spondylosis and cervical spondylosis attracted a rating of 5 points each and the rotator cuff syndrome rated 10 points. The peptic ulcer rated no points. The total rating therefore for Mr Gonzalez disabilities was 20 points under the medical impairment tables. He satisfied the requirements of s94(1)(b).

30. Mr Gonzalez therefore met all the requirements of s94 of the Act and qualified for the disability support pension.

31.     In order to establish that his disability support pension would be portable indefinitely, Mr Gonzalez had to establish to the satisfaction  of the Tribunal that he was severely disabled when he left Australia on 12 January 2001.    A person must be totally unable to work for at least 2 years and unable to benefit within 2 years from retraining or rehabilitation to be severely disabled.

32.     A Health Services Australia doctor found when he examined Mr Gonzalez on 2 December 1999 that he was able to do light work for greater than 8 hours a week.   There was no further evidence between December 1999 and January 2001 when Mr Gonzalez left Australia, which showed he was no longer able to do light work for more than 8 hours a week.

33. The Tribunal finds that Mr Gonzalez failed therefore to qualify as severely disabled under s23(4B) of the Act.

34. As Mr Gonzalez was not severely disabled when he left Australia on 12 January 2001 he is not able to receive the disability support pension overseas for greater than 52 weeks from the time of his departure under s1217 of the Act and the saving provisions contained in Schedule 1A.

35.     Prior to 20 September 2000 a person could go overseas for a period of 52 weeks before their pension was cancelled.

36. Section 1217 of the Act now states that a person cannot receive a disability support pension if they have been outside Australia for more than 26 weeks and they were not severely disabled when they left Australia.

37.     Clause 128 of Schedule 1A contains a provision that the old 52 week rule applies if the person was overseas on 20 September 2000 and subsequently returns to Australia for less than 26 weeks.

38.     Mr Gonzalez qualified for the disability support pension for 52 weeks while overseas as he had been granted the pension in 1996 and was in Colombia on 20 September 2000 and subsequently returned to Australia for less than 26 weeks.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing     Applicant overseas - matter decided on the papers.

Date of Decision  20 August 2004