Green and Secretary, Department of Social Services (Social services second review) - [2023] AATA 2281

Green and Secretary, Department of Social Services (Social services second review) [2023] AATA 2281 (28 July 2023)
Division:GENERAL DIVISION
File Number(s): 2022/2125
Re:Sonia Ann Lesley Green
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:28 July 2023
Place:Adelaide

The decision under review is affirmed.
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Senior Member K Millar
Catchwords
SOCIAL SECURITY – disability support pension – suspension of disability support pension – portability – unlimited portability – whether qualified for unlimited portability – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991(Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Shi v Migration Agents Registration Authority [2008] HCA 31
Udrzal v Secretary, Department of Social Services [2014] AATA 232
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Scrivener and Secretary, Social Services [2014] AATA 537
WMKR and Secretary Department of Social Services [2015] AATA 483
Morton and Secretary Department of Social Services [2014] AATA 949
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member K Millar
28 July 2023
INTRODUCTION

Miss Green was receiving disability support pension when she requested unlimited portability on 7 May 2020. Unlimited portability is a determination that can be made by the Secretary that allows a person to continue to receive a social security payment despite being outside of Australia. If a determination is not made that the person’s payment is portable or an unlimited period, the time in which the person can be paid a social security payment and remain overseas is otherwise 28 days in a 12-month period.
A decision was not made on Miss Green’s request for unlimited portability before she left Australia on 6 January 2021, approximately 8 months after made the request.
On 11 January 2021, a delegate of the Secretary cancelled Miss Green’s pension because the delegate found she was no longer a resident of Australia. If a decision had been made that her payment is portable for an unlimited period, then she was no longer required to be a resident of Australia to qualify for a disability support pension.[1]
[1] Social Security Act 1991 (Cth) (the Act) s 94(1)(ea).
A decision on Miss Green’s request for unlimited portability was finally made on 7 May 2021, four months after she left Australia and after her pension had been cancelled. That decision was not to make a determination that her disability support pension was portable for an unlimited period. On 10 September 2021, an authorised review officer affirmed this decision.
Miss Green is currently receiving disability benefits in the United Kingdom but said the rate of an Australian disability support pension is higher. She does not have any current plans to return permanently to Australia.
Given this matter involved some questions in the interpretation of the portability provisions, the hearing was adjourned for the Secretary to provide further submissions and to allow Miss Green to seek legal advice.
The decision under review
On 14 February 2022, the Social Services and Child Support Division (AAT1) reviewed a decision, which it said was a decision to cancel Miss Green’s disability support pension, but which made findings and formed conclusions about portability. AAT1 refers to a decision affirmed by an authorised review officer on 10 September 2021. This is the decision regarding portability of Miss Green’s pension. The decision to cancel Miss Green’s pension on 11 January 2021 has not been reviewed by an authorised review officer.
Section 142 of the Social Security (Administration) Act 1999 requires that to apply for review to AAT1 that the decision has been reviewed under s 126 or 135 of this Act, which require an application to be made for an internal review, or that the decision was reviewed by the Secretary on his own motion, or that the decision was made personally by the Secretary or the Chief Executive Centrelink.
The decision of the Social Services and Child Support Division did not canvass, in the alternative to unlimited portability, whether Miss Green remained a resident of Australia and therefore remained qualified for disability support pension. While there may be circumstances in which a purported decision of AAT1 may be reviewed at second review, it is not appropriate in the circumstances of this case. As the decision to cancel her pension has not been reviewed by an authorised review officer, Miss Green may still seek review of this decision. The decision under review is the decision to refuse to make a determination that Miss Green’s disability support pension is portable for an unlimited period.
The timing of the decisions made by the delegate is unfortunate. A decision about unlimited portability should be made before a decision is made to cancel a person’s disability support pension. This is because a person is not required to be a resident of Australia if he or she has unlimited portability. In this case, the decision to cancel Miss Green’s pension was made before the decision on unlimited portability.
Does Miss Green have unlimited portability?
Under s 1215(1)(b) of the Act if a person’s portability period for the payment is not an unlimited period, the person’s payment is not payable after the end of the portability period.
The maximum portability period for payments is set out in s 1217(4) of the Act. In general, disability support pension is portable for a total of 28 days in the previous 12 months.
Under s 1218AAA(1) of the Act, the Secretary may make a written determination that a particular person’s maximum portability period is unlimited if the person meets the following circumstances (the qualifying circumstances):
(a)The person is receiving disability support pension;
(b)the person’s impairment is a severe impairment within the meaning of s 94(3B) of the Act;
(c)the person will have that severe impairment for at least the next 5 years; and
(d)if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of s 94(4) of the Act) within the next 5 years.
One of the preliminary issues to consider is when a determination can be made about unlimited portability. Section 1218AAA(1)(a) of the Act requires that the person is receiving a disability support pension. Miss Green is no longer receiving a disability support pension as it was cancelled on 11 January 2021.
Subsection 1218AAA(2) of the Act states:
(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a) the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b) the person's portability period for disability support pension had not ended at the time the event occurred.
Miss Green has not returned to Australia since she departed on 6 January 2021. There is no information to suggest that she has been in a serious accident or has been hospitalised, and the Secretary (and the Tribunal in the place of the Secretary) must not make a determination that the maximum portability is unlimited in relation to her when she is outside Australia.
In Udrzal v Secretary, Department of Social Services,[2] DP Hack stated that the scheme of the Act requires a consideration of section 1218AAA of the Act before a decision is made to cancel the person’s payment.[3] DP Hack states that if the Tribunal is to consider a decision that was required to be made, but had not been made, there is no reason consideration of this decision should be deferred until after the person leaves Australia. DP Hack stated it would be poor public administration to consciously or unconsciously defer making a decision until the person was out of Australia and a decision could not be made in their favour.
[2] [2014] AATA 232.
[3] At [11].
This is particularly apt in the case, where Miss Green first asked for unlimited portability to be assessed nearly 8 months before she left Australia.
To give effect to s 1218AAA(2), the period during which a determination may be made is the period from the time Miss Green requested a determination to be made until she left Australia on 6 January 2021.
Submissions were made about the information that could be taken into account in making the determination. It was contended that the assessment should take place of the person’s eligibility for unlimited portability as at the date they apply for this determination to be made.
In Scrivener and Secretary, Social Services[4] SM Kenny found, without detailed consideration, that the date at which the qualifying circumstances must be met are the time the person advises Centrelink that they are considering travel.[5] This was not followed in WMKR and Secretary Department of Social Services[6] or Morton and Secretary Department of Social Services[7] which state the task for the Tribunal is to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision.
[4] [2014] AATA 537.
[5] At [6].
[6] [2015] AATA 483 at [25].
[7] [2014] AATA 949 at [48].
The Tribunal is not persuaded by submissions from the Secretary about the time at which the person’s circumstances are to be considered at which relate to provisions in the Social Security (Administration) Act about the assessment of a claim for a payment. The assessment of unlimited portability is not analogous to a claim for a social security payment. Section 1218AAA of the Act does not require a specific application to be made, although clearly the Secretary would need a request before assessing unlimited portability.
The Secretary later submitted that a determination can be made considering the circumstances as they were until Miss Green left Australia.
Determining the information that can be taken into account requires close attention to the relevant statutory provisions as stated in Shi v Migration Agents Registration Authority.[8]
[8] [2008] HCA 31 at [92].
There is nothing in the Act limiting the point in time at which a decision must be made while the person remains in Australia.
However, s 1218AA(2) imposes a limitation on making a determination when the person is outside Australia This states a determination must not be made in relation to a person who is out of Australia unless certain circumstances apply. Meaning must be given to this provision.[9]
[9] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69] – [71]
I consider that s 1218AAA(2) imposes a limit on the period in which Miss Green’s conditions may be considered where she is outside Australia. A determination may not be made when she was out of Australia, and this limits the period under consideration. The period in which her circumstances can be considered started at the to the time she requested unlimited portability and ended when she left Australia.
There is no evidence before me that s 1218AAA(2)(a) of the Act applies. If it did, the period would end in accordance with that provision, when the person’s portability period ends.
This conclusion is not comfortably reached in circumstances where the Secretary took eight months to make a decision on unlimited portability. In these circumstances a person’s attempt to travel, which is often for compelling or compassionate reasons, can readily be frustrated by the Secretary failing to make a decision within a reasonable time. The sound administrative practice advocated by DP Hack requires a decision to be made within a reasonable period so a person who receives a social security payment can make an informed decision about their travel.
Does Miss Green have a severe impairment?
A severe impairment is if the person’s impairment has a rating of 20 points or more under a single impairment table. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), which also contain rules for applying the Impairment Tables.
These rules include that an impairment rating can only be assigned if the impairment is permanent and is more likely than not to persist for more than 2 years (Cl.6(3)). A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, the condition is fully treated and fully stabilised and is likely to persist for more than two years (cl.6(4)).
In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred and whether treatment is continuing or planned in the next 2 years is to be considered (cl.6(5)).
Miss Green said she has a learning disability, vertigo and depression. She has sleep apnoea which was not treated at the time she left Australia. Miss Green said the condition which causes her the most problems is vertigo/disequilibrium.
Learning disability
Miss Green said her mother told her she has had issues with a learning disability her whole life and she has difficulty reading and understanding written material. She said her level of reading is a children’s book.
In a report dated 10 December 2020, Miss Green’s general practitioner reports she has a learning difficulty, and states that this diagnosis is supported by a clinical psychology report from Ms Luciana Bartemucci.
It is not, in fact, supported by Ms Bartemucci. A report Ms Bartemucci dated 16 September 2014 states Miss Green has intellectual functioning in the average range, and that testing suggests no specific difficulties that would impact on her ability to seek or engage in employment. This report does not provide a diagnosis of a learning disability or of learning difficulties.
Miss Green provided a letter from Deakin University dated 12 March 2004 stating she is registered as a student with a learning disability. A psychology assessment dated 8 September 2003 states her intellectual functioning is in the average range and that there is no evidence of a learning disability.
I am not satisfied that a learning disability or difficulty has been fully diagnosed and it cannot be given impairment points under the Impairment Tables.
Mental Health
Miss Green told the Tribunal she did not have a diagnosis of a mental illness before she left Australia. She said she had previously been told she had depression, but it was only since she had arrived in the UK and had a traumatic experience that she decided she needed help and is seeking treatment.
Miss Green said she is currently seeking help and had an assessment of her mental health the week before the hearing. This is a considerable time after she left Australia, and as this condition was not diagnosed, treated or stabilised, it cannot be assigned impairment points.
Sleep apnoea
A diagnosis of sleep apnoea is noted by Dr Nyberg on 10 December 2020 as a new diagnosis that is untreated. Miss Green says since she has left Australia, she has obtained or is obtaining a CPAP machine. As this condition was not fully treated when she left Australia, it cannot be assigned impairment points.
Vertigo / disequilibrium
Miss Green said she has vertigo which is a balance disorder that started with an ear infection. She had a number of falls with minor blackouts, memory loss and severe nausea.
The case of her symptoms is unknown. A medical report from Dr Kien Ha, an Ear Nose and Throat surgeon dated 9 May 2013 said her balance problems are not related to her inner ear function. A neurologist, Dr Martin Robinson, reported on 17 December 2012 that there was no specific intercranial pathology. A consultant physician, Dr Cobain, reported on 26 August 2013 that he could not explain the symptoms, and there was no evidence of complex partial seizures.
As part of Miss Green’s 2014 claim for total and permanent disablement from her former occupation as a mail officer, Dr Tschirn, an occupational physician, states:
Although a firm diagnosis is elusive this probably represents a functional disorder in the vestibular pathways beyond the reach of detection for existing medical technology hence the descriptive diagnosis of vestibulopathy.
Dr Tschirn also reports:
Condition results in unsteadiness and risk of falls. She presents an ever present safety risk in the workplace. As the condition has persisted for [greater than two years] despite [treatment and medication] with no treatable cause identified it is likely to persist for the foreseeable future.
As part of her claim for total and permanent disablement, Dr Thi Thuan Doan reports Miss Green has persistent vertigo leading to unsteadiness with persistent episodic vertigo lasting hours – days, and trouble with her gait particularly related to change in position / escalators / elevators.
In her medical report of 10 December 2020, Dr Nyberg reports that Miss Green’s symptoms are constant, with poor balance and risk of falls. Dr Nyberg rates the severity of her condition as moderately severe. Regarding the impact on Miss Green’s function, Dr Nyberg reports poor balance, slow cadence, and limited walking endurance.
A job capacity assessment was conducted on 4 January 2021. This found Miss Green had been diagnosed with chronic disequilibrium in July 2012, with multiple specialist consultations and investigations in 2013 – 2014. Treatment included physiotherapy sessions with a vestibular physiotherapist and medication for nausea. This medication assists the nausea, but treatment has not assisted the vertigo. The job capacity assessor found that while there was no definitive diagnosis, given there have been multiple investigations and specialist consultations and symptoms have persisted over a long period and with no further treatment or investigations, it is fully diagnosed, treated and stabilised and likely to persist for the next five years.
The job capacity assessor found that Miss Green’s impairment rating was 20 points as assessed on Table 11 because she had continual difficultly with balance as confirmed in the medical report of Dr Nyberg as well as in a conversation between Dr Nyberg and the assessor on 6 January 2021. The record of this conversation appears in the JCA report. This reports:
Dr Nyberg confirmed the presence of constant vertigo and impact on function. She noted that when she has seen the customer she has not been using a walker and also did not recall consistent use of a walking stick. With regards to self-reported safety concerns leaving the house unaccompanied, she expected the customer would benefit from initial assistance establishing a route to and from venues such as a workplace, but would then be able to do this independently. She considered the customer would be able to manage part time open employment as long as the position considered her vertigo and balance (e.g. was predominantly sedentary), had limited reading demands, and tasks were of a fairly simple and repetitive nature (T7, 142).[10]
[10] Exhibit T1-154, T-Documents, T7, page 142.
An assessment was conducted by a medical practitioner for Health Services Australia’s Health Professional Advisory Unit on 17 March 2023. This assessment was conducted by way of a review of reports provided about Miss Green’s condition, and an attempt to call Dr Nyberg. The HPAU medical officer was unable to speak to Dr Nyberg, who reported that she had not seen Miss Green for over two years and had nothing further to add to what she had already provided.

Miss Green said the effect of this condition is that she is slow at walking and uses a walking frame, and staggers even using the walking frame. She said she has had nasty falls and near misses.
Miss Green said when she has an episode her head goes weird, but she is not dizzy, and her head is not spinning. She had to sit or lie down and try to sleep it off. This does not happen every day but is most days. She said she can have frequent episodes during the day.
When she has associated nausea all she can do is lie down and wait for it to pass. She has been prescribed stemetil as she constantly wants to vomit.
Miss Green described a blackout at a shopping centre before she left Australia where she felt like both feet went out from under her. She did not recall falling but remembers sitting on the floor looking at her hands. She said she had some instances where she was doing a task and was then unaware of where she was or what she had been doing.
Miss Green said during the day she sits and watches TV and plays games on her computer for between a few hours and half a day and can stay seated for this time. She said the games do not require concentration. She can care for herself and do light housework when she is steady on her feet. She cannot make her bed. She said her mother did this for her in Australia and now her friend assists her. She can do grocery shopping with assistance, with her friend driving her and walking with her around the shops while she uses a shopping trolley for balance.
The Secretary submits there is no supporting evidence of a diagnosis from an ENT specialist as required for the assessment of impairment points under Table 11 – hearing and other functions of the ear. Miss Green has seen an ENT surgeon, and while a cause for her symptoms was not found, her symptoms have not been disputed over a long period of time from many medical specialists, and there is corroborating evidence of her condition.
For conditions that affect balance, the difference between 10 impairment points and 20 impairment points is that for 10 points the person has “more frequent difficulty with balance” and for 20 points has “continual difficulty with balance”, where examples of balance are having to sit down or hold on to a solid object.
Miss Green says she has frequent periods during the day when she has difficulty with her balance and uses a walker. Dr Nyberg, who was asked by the job capacity assessor said she did not observe Miss Green using a walker or walking stick; however, Miss Green says this is because her mother parked close by. This does not rule out her reported need for a walker because of her balance.
The Tribunal considers “constant” in this context may mean without cessation or can also mean of regular and frequent occurrence (Macquarie Dictionary) and considers the description of Miss Green’s symptoms to be of sufficient frequency to be described as constant. As a result, her condition attracts 20 impairment points on the impairment rating tables.
Miss Green’s conditions have been apparent since 2012, and the opinion of the medical practitioners was that it is unlikely to improve. It is therefore likely to continue for at least 5 years.
The Tribunal finds Miss Green has a severe impairment that is likely to continue for at least 5 years.
Can Miss Green perform any work independently of a program of support in the next 5 years?
Section 1218AA(1)(d) of the Act requires that the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of s 94(4) of the Act) within the next 5 years.
Section 94(4) of the Act states:
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of supportif the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
Other definitions
(5) In this section:
"program of support" means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
The term “work” is defined in s 1218AAA(5) of the Act as “ work”:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
This definition of work can be contrasted with the definition for the purposes of qualification for a disability support pension, where this is defined in s 94(5) of the Act as work for at least 15 hours per week. As the qualification of at least 15 hours per week does not appear in the definition of work in s 1218AAA(5) of the Act, the Tribunal accepts the submission of the Secretary that this is work of any duration.
Miss Green says she would need another person with her to get to and from public transport to attend a workplace and would need to be able to return home if she had an episode. She says she is a safety risk in a workplace as reported by Dr Tschirn.
Miss Green said her learning disability is a hindrance to any office-based work, however while a psychologist reported that reading within a limited period should be taken into account, this report did not support that she was unable to work because of a learning disability and the Tribunal does not accept that she is unable to perform any computer-based work.
Miss Green states that her symptoms are unpredictable, and she would not be able to specify the hours she was able to work but agreed that she would be capable of doing some work. It was reported in the job capacity assessment that “She expected that she would be able to manage some type of sedentary part time work, but was not confident she could safely undertake trips to and from work independently …”
Miss Green does not consider she should be required to work from home as this is her safe place, and she would not be covered for workers compensation because of her condition. Miss Green did not identify anything specific to her circumstances that resulted in working at home being unsuitable for her, and the Tribunal does not accept that Miss Green could not be required to undertake work from home if this accommodates the limitations imposed on her by her condition.
The Secretary submits that jobs like computer processing are available for short periods working from or from a workplace, and that these jobs are are suitable and available. It is submitted this type of work would accommodate Miss Green’s impairment. No information was provided by the Secretary on specific positions with wages above the minimum wage that exist in Australia that suit Miss Green’s skills and her functional limitations. This information would assist the Tribunal in future matters.
Psychological assessments have concluded that Miss Green is of average intellectual functioning. She has been able to claim a new payment in the UK, explain that there were tax implications of withdrawing from her superannuation and use a computer to attend the hearing. Miss Green says she is capable of doing some work, and the Tribunal accepts that work such as computer processing can be obtained that would accommodate Miss Green’s functional limitations.
The Tribunal considers Miss Green would have been, and continues to be, able to do some work independently of a program of support.
As a result, she does not meet the requirement in s 1218AAA(1)(d) of the Act that her impairment would prevent her doing work independently of a program of support in the next 5 years.
As Miss Green does not meet s 1218AAA(d) of the Act, she does not meet the requirements for unlimited portability, and the decision not to make a determination that her maximum portability period for disability support pension is an unlimited period must be affirmed.
DECISION
The decision under review is affirmed.

76. I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

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Associate

Dated: 28 July 2023
Date of Hearing: 6 June 2023 and 21 July 2023

Advocate for the Applicant: Self-Represented

Advocate for the Respondent:
Ms Nadia Markov

Services Australia