Jovanovic and Secretary, Department of Social Services (Social services second review)

[2016] AATA 822

Jovanovic and Secretary, Department of Social Services (Social services second review) [2016] AATA 822 (19 October 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1890
Re	Zoran Jovanovic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Bill Stefaniak AM RFD, Senior Member
Date	19 October 2016
Place	Sydney

The decision under review is set aside and substituted with a decision that the Applicant meets the criteria for unlimited portability of his disability support pension as contained in section 1218AAA of the Social Security Act 1991 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

......................[sgd]..................................................

Bill Stefaniak AM RFD, Senior Member

Catchwords

SOCIAL SECURITY –  Disability Support Pension  – request for indefinite portability  – whether ‘severe impairment’ - review of qualification for DSP under social security law provisions – assessment of conditions and impairments – portability eligibility requirements met - decision set aside and substituted

Legislation

Social Security Act 1991, ss 94(4), 1218AAA

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

WMKR and Secretary, Department of Social Services [2015] AATA 483

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

19 October 2016

BACKGROUND

1. The Applicant, Mr Jovanovic, was born in 1954. He is a Serb. He grew up in the old Yugoslavia. He was a student and then did his one and a half years national service with the Army. He started working permanently when he was 28 years of age.

2. He arrived in Australia in 2003 and first worked in Melbourne as a salesman. He then   worked as a tradesman and then moved into the flooring industry in 2008.

3. From about 2006 onwards he experienced some health problems but he kept working. The problems affected the joints in his shoulders and both legs.

4. The Applicant developed rheumatoid arthritis which prevented him from working. In 2009 he was granted Disability Support Pension (DSP).

5. The issue in this case is not about whether the Applicant’s DSP is cancelled. The Respondent concedes that the Applicant has attained the 20 points necessary for DSP. The issue is one of portability.

6. At the relevant time when the Applicant applied for portability of his pension, his son lived with him and would help him with personal care, shopping and taking him to appointments.

7. Over the last few months the Applicant has lived with his friend Mr Milenko Gulic. He has spent some time, normally a few days at a time, at home. As a result of his physical condition, the Applicant has also indicated that his mental state is worsening and that he suffers from depression.

8. His son now lives in Cabramatta and has limited time to help him. Most of his relatives live in Serbia and he has been to Serbia on a number of occasions in the last few years.

9. It is not disputed that the Applicant feels more comfortable in Serbia and his aim is to go to Serbia where one of his sisters will be a 24 hour carer for him. He feels it is much cheaper to live in Serbia and he can get all the necessary treatment he needs there.

10. He particularly finds the hot springs rehabilitation centres of help to his condition. As a result of the medication that he takes, as well as paying him this pension, he stated that it costs the Australian taxpayer an extra $5,000 a month for his medical treatment. This figure seemed to be borne out in other evidence before the Tribunal.

    APPLICATION FOR DSP PORTABILITY

11. On 21 November 2013, the Applicant contacted Centrelink to enquire whether he would qualify for continued payment of his DSP for an unlimited period because he intended to leave Australia permanently to live in Serbia.

12. On 23 December 2013, he applied to Centrelink for a review of portability of his DSP. His application was supported by the following documentation:

    ·medical report from Dr Tomasevic dated 2 December 2013;

    ·letter from his psychiatrist, Dr Kecmanovic dated 11 November 2013;

    ·letter from Dr Protulipac, clinical psychologist, to Centrelink dated 18 December 2013; and

    ·a Centrelink work capacity form, completed on his behalf and dated 23 December 2013.

13. Dr Tomasevic’s report – a Centrelink DSP review for portability form – reported that the Applicant’s rheumatoid arthritis was the condition with the most significant impact on his ability to function. The next condition that significantly impacted on his ability to function was anxiety and depression.

14. The doctor reported the following conditions were generally well-managed and caused minimal or limited impact on the Applicant's ability to function – cataracts; hearing impairment and gastroesophageal reflux.

15. The doctor further stated that when the Applicant was in Serbia for extended periods, he received support from his daughter and extended family. Whilst in Serbia the doctor stated ‘he feels safe, protected, cared for and functional’.

16. On 30 May 2014 the Applicant attended a Job Capacity Assessment (JCA) to check his eligibility for unlimited portability for his DSP. The report was completed on 4 June 2014 and recommended a total impairment rating under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) of 20 points, being 10 points under Table 1 – Functions requiring Physical Exertion and Stamina - for the rheumatoid arthritis condition and 10 points under Table 5 – Mental Health Function - for the mental health condition. The report also determined that the Applicant had a baseline work capacity of up to 7 hours  per week and a baseline level of 8 to 14 hours per week within the next two years with intervention.

17. On 5 September 2014 a Centrelink officer decided that the Applicant could not be paid DSP indefinitely while he was overseas because he was not “severely impaired”, as a result of the above assessment and also as he did have some work capacity of 8 to 14 hours per week with intervention within the next two years.

18. The Applicant requested an internal review of the 5 September 2014 decision, which was affirmed by an authorised review officer on 24 November 2014.

19. The Applicant sought review of that decision in the former Social Security Appeals Tribunal (SSAT) of the Administrative Appeals Tribunal.

20. The matter was heard in Sydney on 16 March 2015 and a decision was posted to the Applicant on 27 March 2015.

21. The SSAT noted that DSP granted for severe impairment may be eligible for unlimited portability under section 1218AAA of the Social Security Act 1991 (the Act) if all of the following circumstances exist:

    (i)the person must be in receipt of DSP;

    (ii)the person must have a “severe impairment”;

    (iii)the decision maker is satisfied that the person will have the “severe impairment” for at least the next five years; and

    (iv)the “severe impairment” must prevent the person performing any work independently of a program of support within the next 5 years.

22. The SSAT found that at the relevant time, namely the date of his claim, that the Applicant was in receipt of DSP and therefore satisfied (i), above.

23. In deciding whether he had a “severe impairment”,  the SSAT noted that s 94(3B) of the Act defines a severe impairment as;

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

24. The SSAT determined that the Applicant has rheumatoid arthritis and osteoarthritis affecting all of his major joints and also anxiety/depression.

25. Evidence was given by the Applicant before the SSAT through an interpreter and the Tribunal ascertained from his evidence that he was able to walk around the shopping centre with a walking stick, that he could walk from a car park to the shopping centre and that he could use public transport but preferred to stay at home.

26. It further found he was able to undertake light domestic duties which he would undertake in a self-paced fashion as overexertion caused pain and shortness of breath. It further found that the medication he took for pain control caused fatigue.

27. It found he had good coordination of his upper limbs although he had some weakness. He could carry light objects and did not have a prosthesis. He could use the telephone, pen or pencil and could turn the pages of a book without assistance. He could undertake overhead activities, albeit not repeatedly, could rotate and bend his neck and spine and remain seated from more than 10 minutes. The SSAT observed him to stay seated for 35 minutes at the hearing.

28. He could walk with a walking stick and could stand up from a seated position without assistance.

29. The SSAT also found that he could self-care, travel alone to familiar areas, maintain stable relationships with friends in his community and concentrate on a task of more than 10 minutes, such as watching television or following a conversation, and could engage in planning and decision-making, although at times, particularly after a restless sleep, he admitted he preferred isolation.

30. The SSAT found that the oral evidence of functional ability was consistent with the documentary evidence in the papers. It further found that the above level of capacity didn't attract a “severe impairment” rating with regards to Impairment Tables 1-5. It felt the “stated and documented level of incapacity [fell] within the mild to moderate categories”.

31. As a result of the above, SSAT did not determine whether the impairment could be expected to continue for at least five years, nor did it consider whether it would prevent him from performing any work independent of a program of support within the next five years.

32. The SSAT did note that the Applicant had told them it would be cheaper for Australia to send him overseas as he cost the government about $5,000 a month in medical treatment. If he could not go back to Serbia, the Applicant indicated that he would like his daughter to come to Australia to be his carer. The Applicant further stated that he wanted to go to Serbia because of protracted tensions with his son, with whom he then resided.

33. The decision under review was affirmed.

    ADDITIONAL DOCUMENTARY EVIDENCE PUT BEFORE THIS TRIBUNAL

34. On 22 April 2015, the Applicant applied for a review to the AAT and since then some new documents have been filed, namely:

    (a)reports of Dr Sanki, general surgeon, dated 25 September 2015 and 24 January 2016;

    (b)letter from Dr Hassett, Department of Rheumatology, Liverpool Hospital, dated 26 November 2015;

    (c)a letter from Ms Taseska of the Macedonian Australian Welfare Association of Sydney, dated 8 October 2015;

    (d)a report from the Applicant’s GP, Dr Kris Tomka, dated 28 June 2016; and

    (e)JCA report dated 13 November 2015.

35. Both reports of Dr Sanki assessed the Applicant at 20 points for upper limb disability and for impairment for lower limbs under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. He further felt that the Applicant has or is likely to have difficulties sustaining work-related tasks for clerical sedentary or manual duties for more than 5 years. He had “severe functional impact on the activities requiring physical exertion of stamina”. His bone scans revealed degenerative changes to his joints especially in relation to his hands and his spine. “He cannot turn the pages of a newspaper and can only sign his name with difficulty.”

36. Unfortunately, whilst the doctor’s observations are most helpful and he applied some of the criteria for awarding 20 points for any one category, he did not address the criteria to award 20 points in Table 2 – Upper Limb Function, but used the criteria for awarding 10 points. Accordingly, I can only take into account his observations and match them, where appropriate, with the tables.

37. In her letter of 8 October 2015, Ms Taseska stated that the Applicant told her he needs someone to take care of him 24/7 and because of his medical condition, his mental state was deteriorating and he suffered from depression. The family members who could look after him all lived in Serbia.

38. Dr Tomka, who has been the Applicant’s GP for a number of years, in his 28 June 2016 report stated that the Applicant’s rheumatoid arthritis was fully investigated and treated. The Applicant had extensive symptoms in the joints of both hands and pain in the cervical and lumbosacral spine. He had impaired mobility and could only walk a few steps with the aid of a walking stick.

39. He assessed the Applicant at 20 points under Table 1 – Functions requiring Physical Exertion and Stamina. He stated the applicant had severe functional impact on activities requiring physical extension or stamina, experienced fatigue with light physical activities, was unable to walk around a shopping centre, unable to use public transport without assistance, and had difficulties sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours.

40. Dr Tomka also stated that the Applicant’s mental health conditions (depression) were fully stabilised and treated and there was a severe functional impact on activities involving mental health function. He needed regular support with self-care and independent living. His son recently left him alone. He had impaired concentration and task completion, impaired behaviour, planning and decision making. He stated the Applicant qualified for 20 points under Table 5 – Mental Health Function.

41. However, as Dr Tomka does not appear to be a psychiatrist or clinical psychologist, he is not qualified to make this assessment.

42. The Applicant had urinary incontinence, continued dribbling of urine throughout the day and was developing cataracts in both eyes. Further, he suffered from chronic gastritis. The doctor felt he should be awarded 20 points for his incontinence (see Table 13 – Continence Function).

43. Dr Tomka, concluded:

    “Mr Jovanovic’s condition is permanent and there is no possibility for improvement.  It is my strong opinion that he should be granted Portability Pension”.

    THE LAW

44. The relevant date I have to consider is the date the Applicant made his request for portability, being 23 December 2013. I am entitled to take into account any additional material that has subsequently come to light.

45. I accept the Respondent’s submission on this point.

46. The Respondent contended that there is no express legislative time limit for consideration of a request for unlimited portability of a DSP and further added in paragraph 44 of its submission that the preferred approach is that a determination for indefinite portability should take effect at the date when the applicant for indefinite portability requests such a determination, with the Tribunal being permitted to take into account all evidence up to the date of the Tribunal’s decision (in accordance with the High Court’s decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286).

47. Further in the case of WMKR and Secretary, Department of Social Services [2015] AATA 483 at [31] the Tribunal stated:

    “I think that the correct construction is that the question of eligibility must be determined at the date of claim, applying the legislation then in force and subsequently as circumstances demand. There is no barrier to the tribunal considering a claimant’s eligibility for indefinite portability of DSP from the date of the claim or request that commenced the decision making process leading to the application for review by the Tribunal up to the present, and to do so on the materials placed before it, whether or not those materials were before the original or intermediate decision makers..”

48. The Respondent submitted that this approach was consistent with Shi and I agree.  Accordingly, I have applied the facts of this case to the law as stated above.

49. It is my role to make the correct or preferable decision based on the facts and circumstances as they existed when the original decision was made.

50. I have already detailed what the Applicant could do as at March 2015 when the SSAT made its decision. As a result of his own evidence I accept at that time, whilst he certainly was entitled to be on a DSP, he would not get 20 points for any one of the tables which is what he needed for portability.

51. The JCA report for June 2014, which was used by the original decision maker, recorded the Applicant had said he lived with his adult son and spent most of his days watching TV surfing the Internet (this was denied by the Applicant) and spending time on the computer. Further that he was able to shower and dress himself and do light household tasks, although with pain and reduced efficiency in that he had difficulty unscrewing bottles and removing their tops as well as reaching for overhead items.

52. However, he could make simple meals such as sandwiches for himself and  he was able to clean bench tops and clear the dining table as well as sweep the floor with a long stick broom. He could independently walk to the shops to buy light grocery items such as bread and a coffee but his son did the bulk of the grocery shopping and always shopped for the heavier items. He further stated that a neighbour occasionally visited him and dropped off cooked meals.

    EVIDENCE GIVEN BEFORE THE TRIBUNAL

53. Mr Jovanovic gave evidence at the hearing and was assisted by a Serbian interpreter. I observed him carefully. I noticed that at one stage, he turned 90° to his left and appeared to be in a bit of pain. During the course of the hearing, he would stand up every 30 to 35 minutes unaided. I note the Applicant used two walking sticks to move around at the hearing. 

54. He stated that he had all sorts of problems dating back to when they first manifested themselves in 2006. He had seen a number of professionals. He stated he had been given the wrong medicine in the past which made it difficult to get out of bed and he had tried different painkillers and he had almost poisoned himself.

55. For the last 2 - 4 months he could not control his urination. He could not function the way he used to several years ago, he could no longer make a sandwich. More recently, his son was helping him with everything.

56. His son would get upset when he soiled his underpants - this occurred not infrequently some three or four months ago - although not as much now.

57. There had been no improvements with his joints. He has numbness and pain and over the last few months, he spent most of his time lying down.

58. Since his son left him, the Applicant stated that “[he has] been cracking at the seams psychologically”.

59. Up until a year ago, the Applicant’s son lived with him, but left last year.  The Applicant has no other family in Sydney. He had a cousin who has passed away.

60. His friend, Mr Gulic, has a daughter-in law, who brings everything to him and he now relies on Mr Gulic, who is also on DSP, and whom he has known for three or four years, for nearly everything.

61. He stated that he has not accessed the internet for a long time. Up until about two years, ago he used the computer to access and have contact with his children, sisters, friends and relatives.

62. He stated that whilst he had travelled overseas on a number of occasions in recent times, his son would organise his trips. His son would pay for the trips because he could not afford to and that when he went to the airport, he would use a wheelchair to get around.

63. He would always have someone there to assist him. The airport organised that. He stated that when he was working he paid for his own travel.

64. He further stated he couldn't participate in a training program. He said  “What can I do?  I’m not capable of looking after myself. They can forget about it”.

1. He is now 62 years old. He alleged that when he did the JCA report, the doctor forced him to sign something that they didn't translate for him and he had no idea what it was.

2. He told the officials he would go to any doctor they wish him to go to and he further stated that in recent times, he rarely ventured out and that his unit in Greenway had only five steps. He stated he didn't know anyone in the complex and only would venture out about once a month.

3. The Respondent asked the Applicant to turn pages of a document, and with great difficulty he fumbled around and slowly turned some pages. I noted that he could only just do so with a lot of effort.

4. He stated at present he does not have a computer and if he did, he couldn't use it and this is because his situation has deteriorated. His son used to be next to him when he used a computer and would switch it on or off and he (the Applicant) would look at the news.  He hasn't used it for two years and he would prior to this use Skype to contact his daughters.

5. The Applicant had a mobile and he talked to his family one or two days before the hearing.

6. He stated that his son used to bathe him, but now his friend, Mr Gulic, assisted him by regulating the water flow. He indicated he had not had a shower for 12 days and that he had been sleeping in the same clothes for the last 15 days and that he had just put on a jacket and shoes to come to the tribunal.

7. The Applicant stated that he could no longer do any light household tasks. He could not remember when he last unscrewed a jar top and he now has trouble turning taps on and off. He can no longer make a sandwich - his son used to prepare these and his friend, Mr Gulic, now helps him.

8. Mr Gulic buys what is needed.  Mr Gulic also picks him up and takes the Applicant to his [Mr Gulic’s] place where Mr Gulic receives help himself from his daughter-in-law.

9. His friend’s son and daughter-in-law buy food for him.  He said he could spend at least a week at a time at the Gulics’ home and now spent most of his time there.

10. He said he could no longer clean the table nor sweep the floor. Two years ago he would be able to walk to the shops and buy light grocery items, but is no longer capable. 

11. He said his friend (Mr Gulic) drives him down to pick up his pension so he can contribute to groceries.

12. He always needs walking sticks and has needed them now for more than a year.  He stated that his friend knows what he needs and buys everything for him.

13. For the last six weeks he had not seen his son and this was difficult because previously he lent on him heavily. He felt he cannot ask his friend to help him as much as his son. His friend can't bathe him and he has only had a shower bath on two or three occasions since his son left.

14. He stated that whilst he was just able to turn several pages of a document in my presence, he was doing so with difficulty. He further advised the Tribunal that the last time he used public transport was in 2015.

15. When he was asked whether he could still carry a light object like a loaf of bread, he stated “I don't have a need to”. He stated he could sign his name and demonstrated this with some apparent difficulty and clumsiness in holding the pen. He indicated that he felt senile and desperate.

16. When he went to see the JCA report person in October 2015 his son drove him there and helped him get in and out of the car. He thought it was a doctor’s appointment. He said he said he felt like he was being treated as if he was a crook.

17. Whilst his son used to visit him a lot, it got to a point recently where his son said to him that he could not look after him anymore.

18. I noted he was playing with his glasses and that he was turning his glasses around in his hand.

19. He said he normally just sits back in his chair and rests and watches TV at his friends place because his friend can get Serbian broadcasts. He stated – “I watch TV like a zombie”.

20. His son now ran the furniture and flooring business.

21. The Applicant was taken through all of his travel itineraries over the last few years by the Respondent. The Applicant reiterated what he had said earlier in terms of how he would get to the airport and the fact that he would use a wheelchair there.

22. His friend, Mr Gulic, gave evidence and confirmed he had known the Applicant for three or four years and that for the last 6 to 7 weeks, the Applicant had been largely living at his place although he would take him to his own home on occasions. Mr Gulic stated the Applicant would stay with him for up to 10 days at any one time.

23. Mr Gulic said he needed help himself and he had two sons and a daughter-in-law who also helped him.  He stated he would give the Applicant a plastic chair in the shower and he (Mr Gulic) would adjust the water for him.

24. Mr Gulic had a house with three rooms. He confirmed that the Applicant was sleeping in the same clothes.

25. Mr Gulic stated the Applicant was nervous, anxious, argumentative and annoying to him.

26. Mr Gulic stated he could drive and that he would bring in milk and bread and that his daughter-in-law would cook for both of them.

27. He stated that he could no longer have a normal conversation with the Applicant. He said that the Applicant was dangerous with his walking stick and would at times try to hit him with it.

28. He stated that sometimes it was difficult for the Applicant to pick up a bottle of water and that most of the time he would open things for him.

29. He stated that the Applicant could use a fork but not that well. He had to open bottles for him, although the Applicant usually drank from a cup but he had to be assisted.

30. Mr Gulic stated that he too was on DSP as a result of injuries received 12 years ago.

31. Under cross-examination, Mr Gulic stated that although he is ill himself, he tries to be a good man and help people and that despite the problems, the Applicant is his friend. He said that he knew the Applicant when he was still living with his son, but not very well, but that now his son has left him, he has filled the role his son used to play and he now takes the Applicant to doctor appointments.

32. Mr Gulic stated that the Applicant lies down most of the time now and he struggles to get up when he tries to walk.

33. He stated he slams the door a bit, he likes to drink alcohol and that he (Mr Gulic) finds his behaviour strange. He can be quite touchy. He said he did not know how often the Applicant took tablets and he also confirmed that the Applicant didn't have a computer.

34. He confirmed that he helped the Applicant pickup his pension and that the Applicant would buy his tablets by giving Mr Gulic the money to get them. The Applicant would tell Mr Gulic what food and cigarettes he wanted.

35. Mr Gulic impressed me as a truthful witness doing his best to answer questions to the best of his ability.

36. He couldn't answer questions as to what the Applicant did two years ago as the Applicant lived with his son at the time.

37. He said the Applicant had dentures and that he broke his mirror. He confirmed that the Applicant had not washed or even taken his shoes off for about 12 days.

38. He stated the Applicant had his own phone and that he had taken the Applicant home on the several occasions over the last 6 to 7 weeks,  he confirmed he would call him to check on him and would leave messages because “he doesn't answer his phone”.

    CONSIDERATION AND OBSERVATION

39. Assuming the Applicant and Mr Gulic are not gilding the lily - Mr Gulic certainly seemed to me to be a credible witness - it would seem that the Applicant has deteriorated further over the last few months.

40. Looking at the tables and applying them now to what has now been put before the Tribunal in evidence I would make the following comments.

41. In terms of Table 1 – Functions requiring Physical Exertion and Stamina - I feel it is probable that the Applicant can’t walk or mobilise around a shopping centre without assistance, nor get from the car park to the shops without assistance, nor use public transport without assistance nor perform light day to day tasks without assistance.

42. If I am correct in the above assessment, it would mean that the Applicant would get 20 points under Table 1.  Dr Tomka states the same in his report and refers to the criteria contained therein. Dr Sanki also to an extent corroborates some of the criteria to be used in the assessment.  

43. For Table 2 - Upper Limb Function - he appears now to have limited movement or coordination in both hands, has severe difficulty handling or moving most objects, has difficulty using a computer keyboard despite appropriate adaptions, has severe difficulty using a pen or pencil and has severe difficulty turning the pages of a book without assistance. He may well qualify for 20 points. As Dr Sanki appears to use the criteria for 10 points he cannot be said to corroborate this observation of mine even though he does allocate 20 points. The evidence of Mr Gulic and the Applicant certainly indicates that the Applicant meets this criteria.

44. For Table 3 - Lower Limb Function - in my view, he would rate 10 not 20 points at present as he can it seems sit up without assistance. Having looked at the criteria, I’d still rate him a 10 for Table 4, although if there was evidence he could not perform any overhead activities, he might make it up to 20.  At any rate he only needs a rating of 20 for any one table.

45. Finally for Table 5 - Mental Health, I believe from what I heard and saw he does appear to have severe difficulties with most of the following;

    (i)self-care and independent living;

    (ii)social/recreational activities and travel;

    (iii)interpersonal relationships;

    (iv)concentration and task completion;

    (v)behaviour, planning and decision making; and

    (vi)work/training capacity.

46. This would entitle him to 20 points. However, I am not a Psychiatrist or clinical psychologist and nor it seems is Dr Tomka.

47. It also appears to me that he would now  also satisfy the other criteria. His condition (ie. his “severe impairment”) appears to be real and appears to be deteriorating – it also appears to be well and truly permanent and is certainly likely to remain so for at least 5 years (see Dr Sanki’s report of 24 January 2016).

48. His new condition of regular incontinence of the bladder further complicates his ability to hold down any job. Indeed as a result of his current condition, I am at a loss to see what job he could possibly do even with an ongoing program of support.

49. I am satisfied that Dr Sanki’s reports of 25 September 2015, his report of 25 January 2016 and Dr Tomka’s report of 28 June 2016, largely confirm my own observations of the applicant  as does the evidence of Mr Gulic.

    CONCLUSION

50. Taking those three reports and the additional but relevant comments of the those two doctors, together with my own lay observations of the Applicant and Mr Gulic’s evidence, I find there is sufficient evidence to award the Applicant 20 points under Table 1 and also in my view 20 points under Table 2. If Dr Tomka is also a psychiatrist then there is also sufficient evidence for Table 5 to rate 20 points, but as a result of my above findings in relation to Table 1 we really need go no further than that.

51. I also find as a result of those 3 reports, Mr Gulic’s evidence and my own observations that the severe impairments will continue for at least 5 years and the severe impairments would prevent the Applicant from performing any work in Australia independently of a program of support within the meaning of section 94(4) of the Act within the next 5 years.

52. Accordingly, I would grant him portability of his DSP.

53. I would also make the following observation to the parties. Although it is not a legal consideration, it is nevertheless a relevant practical observation in my view that it clearly should be cheaper for the Australian taxpayer for this man to take his DSP and go to Serbia and live there.

54. This does not appear to me to be a situation where a man on a DSP is faking it so he can go back to his country of origin to live on a DSP at the Australian taxpayer’s expense. The Australian taxpayer is right to be concerned at such situations - that is one of the main reasons why the law has been tightened up. At any rate, in the Applicant’s case it seems it costs the Australian taxpayer more for him to stay here than to go to Serbia, even if he takes his DSP with him.

55. I accept the evidence that it appears to cost the taxpayer at least an extra $5,000 per month in medical treatment, plus as I understand it, the costs of supplying him with a NSW Housing trust home - and all of this on top of his DSP - for him to stay in Australia.

56. It would seem to be a win-win situation for him to get portability and apart from the evidence now being before the tribunal to support his application, it also points to the fact that  he appears to be going downhill fast, especially mentally. Where he to stay in Australia his medical costs would be a further drain on the public purse, not to mention the tragic effects that will have on him personally.

I certify that the preceding 120 (one-hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

...............[sgd]...................................................

Associate

Dated 19 October 2016

Date(s) of hearing	6 & 12 July 2016
Advocate for the Applicant	Ms R Alexandrova
Solicitors for the Respondent	Department of Human Services