Ianni and Secretary, Department of Family and Community Services

[2005] AATA 165

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 165

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/23

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANGELA IANNI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date23 February 2005

PlaceHobart

Decision The decision of the Social Security Appeals Tribunal of 11 December 2002 is affirmed.

[Miss Mary Imlach]

Senior Member

CATCHWORDS

Disability Support Pension - severely disabled

Social Security Act 1991

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

23 February 2005	Miss Mary Imlach (Senior Member)
INTRODUCTION

1.      On 4 February 2003 the Applicant ANGELA IANNI lodged an application under S.29(1) of the AdministrativeAppeals Tribunal Act 1975 (Cth) for review of a decision made by the Social Security Appeals Tribunal dated 11 December 2002 (“the decision”).

2.      The decision in turn affirmed a decision of an Authorised Review Officer of the Respondent to reject the applicant’s claim for a disability support pension (DSP).

3.      The Applicant who resides in Italy, lodged a claim for disability support pension on 7 February 2002.

4.      In support of her application the Applicant lodged a Treating Doctor’s Report (TDR) with Centrelink.

5.      The Applicant’s claim for a DSP was rejected on 22 August 2002 on the basis that the Applicant was found not to be severely disabled.

6.      On 26 September 2002 the Applicant requested a review of the decision to reject her claim.

7.      The Applicant claimed in her initial application for DSP that as she was blind in her left eye and was losing the sight in her right eye, she was unable to work.

8.      The Respondent contended that the TDR lodged by the Applicant on 16 April 2002 indicated that the Applicant suffered from conditions of Arterial Hypertension, Anxiety and Depression, Uterine Fibroma and lack of vision in her left eye.  The Applicant’s doctor indicated in the TDR that the Applicant would be able to return to any type of part-time work, for at least 8 hours per week within 12-24 months.

9.      Further medical evidence, a neuropsychiatric report of 3 July 2002 stated that there were “no signs of intellectual deficits and the major psychological faculties are ok and well-functioning”.

10.     A detailed medical report dated 7 May 2002 by Dr Montessano Vito stated that the Applicant was “able to perform semi-heavy work  …. can perform her last occupation full-time;  she can perform a suitable occupation full-time (eg home helper, aide in health institutions.  Her conditions are likely to improve after cataract surgery to the L eye”.

11.     The Respondent had on several occasions requested the Applicant to lodge medical evidence to support her claim that she was unable to work but up to the date of the hearing the Applicant had not provided any medical evidence additional to the Treating Doctor’s Report (TDL) dated 16 April 2002.

12.     The Respondent submitted that a “disability support pension” means the payment made under the legislation of Australia to people who are considered to be severely disabled under that legislation.

13.      The Respondent submitted further that the evidence in this case showed clearly that the Applicant was not severely disabled at the time she lodged her claim for DSP.

14.      The hearing was conducted by a telephone hook up with the Applicant who became very distressed.  She claimed that as she had been a resident of Australia for many years and had worked in Australia from the age of 14 years to 50 years, she should be entitled to a DSP.

15.      It was pointed out to the Applicant during the hearing that she had been requested on several occasions to supply further medical evidence but to date such evidence had not been forthcoming.

CONSIDERATION

16.      Section 23(4B) of the Act states that 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 at 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;  or

(b)  the person is permanently blind.

17. Section 6(1) of the Social Security (International Agreements) Act 1999 provides that the Social Security Agreement between Italy and Australia has effect despite anything in the Social Security law. Article 2 of the International Act lists disability support pension as a payment covered by the Agreement.  Article 5 of the Agreement allows residents of Italy to qualify for a disability support pension, notwithstanding they are residents of Italy, if they have been a resident of Australia at some point.

18.      Article 1.1(f) of Schedule 2 of the International Act says “disability support pension” means in relation to Australia, the payment made under the legislation of Australia “to people who are considered to be severely disabled under that legislation”.

19.      The Applicant satisfied Section 94(1)(a) of the Act which requires that a person who has applied for a DSP must have a physical, intellectual or psychiatric impairment.  The Applicant’s medical evidence disclosed that she suffers from hypertension, depression and anxiety and partial visual loss.

20.      In addition the Applicant must also have a continuing inability to work because of her impairment pursuant to Section 94(1)(c) of the Act.

21.      The Guide to the Social Security Law (1.1S.110) (“the Guide”) says:

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.

22.      The medical evidence supplied by the Applicant in support of her application for a DSP showed clearly that she was not severely disabled at the time of the lodgement of her claim in that it did not show that she was incapable of working for 8 hours or more within the 2 years following her claim.

23.      On the contrary, the Applicant’s own treating doctor in his TDR of 7 April 2002 indicated that the Applicant would be able to return to any type of part-time work within 12-24 months.

24.      The further evidence of the Detailed Medical Report commissioned by the Italian Welfare Authority dated 7 May 2002 stated that the Applicant is “Able to perform semi-heavy work … can perform her last occupation full-time;  she can perform a suitable occupation full-time (eg. home helper, aide in health institution)”.

25.      The Applicant has not provided any medical evidence to support her claim that she is unable to work.

26.      The Tribunal is satisfied that on the evidence submitted the Applicant is not severely disabled and therefore is not qualified to receive a disability support pension.

Decision

That the decision of the Social Security Appeals Tribunal of 11 December 2002 be affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed: R Hunt – Administrative Assistant

Date/s of Hearing  7 December 2004
Date of Decision  23 February 2005
Counsel for the Applicant          
Solicitor for the Applicant          Unrepresented
Counsel for the Respondent      
Solicitor for the Respondent     Ms Diana Hutchinson, Centrelink