Kaluza; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 497

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 497

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1839  

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And TANYA KALUZA

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date17 June 2008

PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes a decision that the respondent is not “severely disabled” within the meaning of the legislation.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – portability – applicant suffering from depression, anxiety, migraines and gastric reflux – consideration as to whether she was severely disabled – ability to travel and care for others – good prior workforce skills – receiving treatment for conditions – ability to work part-time – effect of International Social Security Agreement with Slovenia – decision set aside

Social Security Act 1991 ss 23(4B), 1218AA(1)

Social Security (International Agreements) Act 1999 Article 2

REASONS FOR DECISION

17 June 2008   Senior Member L Hastwell  

1.      The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the applicant) sought review of a decision of the Social Security Appeals Tribunal (the SSAT) made on 13 April 2007 whereby the SSAT set aside the decision of the Authorised Review Officer and substituted a new decision that Ms Tanya Kaluza (the respondent) was “severely disabled”.

2.      The respondent was granted Disability Support Pension  (DSP) in June 2004 for conditions of anxiety, depression and gastric reflux problems.

3.      In late 2006 the respondent advised the applicant that she wished to travel overseas to care for an elderly relative.  Under the Social Security Act 1991 (the Act) recipients of DSP can be eligible for an extended portability period with respect to their entitlements while out of the country if they satisfy certain criteria including that of being “severely disabled”.

4.      In normal circumstances, a person must satisfy a number of criteria set out in the Act to establish an entitlement to extended portability of a pension.  It was common ground in this case that because of the existence of an International Agreement between the Australian Government and the Slovenian Government contained in the Agreement on Social Security between the Government of Australia and the Government of the Republic of Slovenia, the respondent would be entitled to extended portability of her pension by establishing that she was severely disabled within the meaning of the term as set out in the Act.

legislation

5.      The relevant legislation is to be found in the Act

6. Section 23(4B) of the Act provides:

“(4B)    For the purposes of this Act, a person is severely disabled if:

(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”.

7. Article 2 of the Agreement pursuant to the Social Security (International Agreements) Act 1991 provides:

“ARTICLE 2

Legislative Scope

1.       Subject to paragraph 2, this Agreement shall apply to the legislation effective at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, supersedes or replaces it:

(a)     in relation to Australia, the Acts forming the social security law in so far as the law provides for, applies to or affects the following benefits:

(i)         age pension; and

(ii)        disability support pension for the severely disabled;

and

(b)    in relation to Slovenia, the legislation that governs the Pension and Invalidity Insurance except for the provisions concerning the benefits for residual ability to work.

2.       This Agreement shall apply to laws or regulations which extend the existing legislation to other categories of beneficiaries only if both Parties so agree in a Protocol to this Agreement.

3.       Notwithstanding the provisions of paragraph 1, the legislation of the Parties shall not include treaties or other international agreements concluded between either of them and a third State, except as otherwise provided in this Agreement.”

8.      1.1.S.110 of the Guide to Social Security Law provides that a recipient of DSP 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.

issues

9.      The issue for the Tribunal to determine is whether the respondent can be assessed as being “severely disabled” within the meaning of the Act.  This involves a consideration of:

·whether her level of impairment from physical or psychiatric conditions prevents her from doing any work for 8 hours a week or more for the next 2 years; and

·whether she would be unable to benefit within the next 2 years from participation in a program of assistance or rehabilitation. 

the hearing

10.     The respondent declined to participate in the hearing.  In an email sent to the Tribunal on 6 November 2007 (Exhibit R1) she said that she had relocated to Victoria, that she agreed with the SSAT findings and she asked that the decision in this matter be made by reference to the current papers.  She emphasised that she did not wish to have any other involvement. 

11.     The Tribunal contacted her by telephone after this date and once more asked if she wished to participate and emphasised the importance of her participation if she wanted to be heard, but she was adamant she did not want to be involved and that the Tribunal could make its decision without further reference to her. 

12.     In the circumstances, the Tribunal proceeded with just the applicant present at the hearing. 

13.     The applicant tendered a statement of Derryn Preeya Mitchard (nee Ireland) dated 12 March 2008 (Exhibit A2), a registered psychologist and the person who carried out the Job Capacity Assessment Report with respect to the respondent (T9/64-70).  Ms Mitchard also gave evidence.

14.     The applicant relied otherwise on the documents before the Tribunal.

15.     The respondent had attended before the SSAT in April 2007 and gave evidence.  The SSAT decision was contained in the T documents at T2 and the Tribunal had regard to their discussion of the evidence and the conclusions reached.

16.     At that time of the SSAT hearing, the respondent wished to travel to Slovenia to care for an elderly uncle.  It was acknowledged that she suffered from the conditions of anxiety, depression, migraines and gastric reflux problems.  She was born on 20 November 1950 in a village, which was then in Yugoslavia.  She is currently aged 57.

17.     The respondent told the SSAT that she was contemplating travelling to Slovenia with her grandson, who was 16 years of age at the time and she had also recently travelled to New Zealand to visit one of her children.  She claimed that she suffered from significant panic attacks and was fearful of leaving the home in Adelaide which she shared with her daughter.  Her daughter did a great deal of shopping and driving for her.  The respondent had previously held quite a senior position in Canberra in the telecommunications area. 

18.     The respondent had been through a traumatic separation, divorce and bankruptcy and it appears that those events had an adverse affect on her health.  The adverse events had taken place between 1999 and 2003.  Her last position in the work force had been as a telecommunications manager in 2003.  Prior to that she had worked as a human resources manager and in accounting.  It appears she has not participated in the work force since 2003.

19.     She had received some counselling in 2003, but claimed that it worsened her condition and she had ceased any formal counselling in 2004. 

20.     In the treating doctor’s report of February 2007 (T10), Dr Ignacio confirmed that the respondent had been experiencing months of recurrent headache and anxiety with an inability to leave the house, problems with sleep and social withdrawal.  In that report he described her condition as significant and ticked the box indicating that the condition was likely to fluctuate within the next 2 years and the impact of this condition would persist for more than 24 months.  At that time the applicant was being treated with antidepressant medication. 

21.     The applicant arranged for the respondent to be seen by a psychologist, Ms Mitchard, who had considerable prior experience in undertaking Job Capacity Assessments at the time that she carried out this particular assessment.  She conducted a face-to-face interview with the respondent in February 2007 and she also considered the prior medical evidence.

22.     At the hearing Ms Mitchard’s evidence was that she had no independent recollection of carrying out this particular assessment and could only rely on her experience and the content of the assessment.

23.     Ms Mitchard accepted that the respondent’s medical conditions were permanent and the total impairment rating given for a combination of the conditions was 25 under the relevant scale.

24.     She concluded however, that despite her impairments the respondent still had a baseline work capacity of 8-14 hours per week to undertake light skilled work, for example in telecommunications support or as a technical officer, which were fields of work with which the respondent is familiar.

25.     Despite her lack of  independent recall of the respondent, Ms Mitchard expressed the view that the reason that she considered that the respondent was able to work 8 to 14 hours a week was because of her prior demonstrated high level of functioning and because she had previously successfully completed the personal support program over a 2 year period.

discussion of the evidence

26.     The Tribunal did not have the benefit of meeting with the respondent, nor of receiving any contemporaneous medical evidence from her.  There was no evidence to hand at all of what the respondent is currently doing with her life, other than that she has moved to Victoria. 

27.     The Tribunal considered all available evidence and made the following findings:

·The respondent was working in a management position in the telecommunications industry until she ceased work in 2003.  Prior to that she had a good working history.

·She was suffering from anxiety, depression and gastric reflux problems at the time of the SSAT hearing.  Stressors in her life between 1999 and 2003 had particularly contributed to this condition.

·At the time of the SSAT hearing she was contemplating a trip to Slovenia to care for an elderly relative and she had recently returned from a trip to New Zealand.  She planned to take two of her grandchildren to Slovenia with her which indicates a confidence in being able to care for others that would be reliant upon her.

·She has now moved out of South Australia and has settled in Victoria.

·The respondent has a proven ability to travel.  She has workforce skills that enable her to participate in the telecommunications industry.

·There is no current medical evidence available as to the respondent's current condition.

·The most disabling aspects of her condition, namely depression and anxiety, are conditions that tend to fluctuate and improve with medication.  At the time off the hearing, the applicant was taking medication for the condition.

·The fact of her relocation to Victoria may be indicative of a degree of recovery, although without knowing more about her current condition and circumstances no significant inferences can be drawn from her relocation.

28.     The respondent has now successfully re-established in Victoria.  With no evidence to the contrary, the Tribunal assumes that she is no longer living with her daughter.

29.     The respondent has elected not to participate at all in the hearing, even by telephone, and so the Tribunal has no contemporaneous evidence as to what the applicant’s current level of disability may be.

30.     To be severely disabled within the meaning of the legislation requires a significant level of impairment and incapacity and it is the Tribunal's view that the respondent cannot establish that she meets that definition.

31.     Even at the time of the SSAT hearing the respondent must have been able to function at quite a good level to be able to contemplate taking two children to a distant country and then care for not only an elderly uncle, but also for the two children while away.  She has also shown an ability to travel and to relocate.

32.     The Tribunal is satisfied that, despite her disabilities, she could participate on a part-time basis in the workforce if she chose to do so.

33.     Without any other evidence, and with no contemporaneous evidence to rely on, the Tribunal prefers the evidence of Ms Mitchard to that of the respondent and finds that the respondent had a baseline capacity of working 8 to 14 hours per week at the time of the SSAT hearing.

34.     The Tribunal sets aside the decision under review and substitutes the decision that the respondent is not “severely disabled” within the meaning of the legislation.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

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

Dates of Hearing  13 February 2008 & 24 April 2008
Date of Decision  17 June 2008

Advocate for the Applicant       Ms J Kitto

Centrelink Legal Service Branch
Advocate for the Respondent   No appearance