KGLC; Secretary, Department of Social Services and (Social services second review) - [2023] AATA 17

KGLC; Secretary, Department of Social Services and (Social services second review) [2023] AATA 17 (16 January 2023)
Division:GENERAL DIVISION
File Number(s): 2021/1886
Re:Secretary, Department of Social Services
APPLICANT

KGLCAnd
RESPONDENT

Decision
Tribunal:Member Dr C Huntly
Date:16 January 2023
Place:Perth

The Reviewable Decision, being the AAT1 decision dated 11 February 2021 that the Respondent’s claim for payment of a DSP is granted, is affirmed.
...........[Sgd].............................................................
Member Dr C Huntly
Catchwords
SOCIAL SECURITY – DSP – residency requirements – application under s 179 of the Social Security (Administration) Act 1999 – review of AAT1 decision - Respondent is a dual citizen of Australia and United States – whether Respondent was eligible for DSP – Respondent came to Australia as a 10-year-old child – Respondent’s father is US citizen in receipt of US disability benefit – International Agreements Act – reciprocal benefits – totalisation –reviewable decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999 sch 13 (‘Agreement Between the Government of Australia and the Government of The United States of America on Social Security’)
Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Burnside and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AAT 1048
Charan v Secretary, Department of Social Services (2016) 247 FCR 422
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161
Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597
McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation (2005) 142 FCR 134
Povey v Qantas Airways Ltd (2005) 223 CLR 189
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Russell v Federal Commissioner of Taxation (2011) 190 FCR 449
Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous (2013) 231 FCR 532
Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338
Secondary Materials
Department of Social Services, ‘Guides to Social Policy Law’ Social Security Guide, version 1.295
United States Code, Social Security Act, 42 U.S.C. §§ 301-1305
United States Social Security Administration, Agreement between the United States and Australia, Publication No. 05-10176, September 2018
US Social Security Administration, Disability Benefits, Publication No. 05-10029 April 2021
US Social Security Administration, Children with Disabilities, Publication No. 05-10026 February 2021
Vienna Convention on the Law of Treaties, opened for signature on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).
REASONS FOR DECISION
Member Dr C Huntly
16 January 2023
introduction

The decision under review (Reviewable Decision) is the decision of the Administrative Appeals Tribunal, Social Services & Child Support Division (AAT1) dated 11 February 2021, which set aside the decision made by the Applicant’s delegate, an Authorised Review Officer (ARO) and substituted it with a new decision. The AAT1 determined that the Respondent (KGLC) was eligible for a Disability Support Pension (DSP) and that the matter should be remitted to the Applicant for assessment of KGLC’s entitlement.
The Applicant (the Secretary) applied for a review of the AAT1 decision made on 11 February 2021, by the Tribunal as presently constituted in the General Division. The application before me concerns whether KGLC can avail himself of the relevant provisions of the Agreement between the Government of Australia and the Government of the United States of America on Social Security (the US Agreement)[1] to meet the qualifying Australian residence requirements for the grant of a DSP.
[1]Social Security (International Agreements) Act 1999 (Cth) Sch 13. See also United States Social Security Administration, Agreement between the United States and Australia, United States – Australia, publication No. 05-10176, dated September 2018 < >
The Reviewable Decision comes before this Tribunal pursuant to s 179 of the Social Security (Administration) Act 1999 (the Administration Act). Deputy President Boyle summarised the role of the Tribunal in this circumstance in Kerr,[2] as follows:
[2]Kerr and Secretary, Department of Social Services [2022] AATA 147
35.Like all reviews by the Tribunal, the AAT second review under s 179 of the Administration Act is a hearing de novo based on the evidence before the Tribunal at the time of the AAT second review. I summarised the role of the Tribunal in reviewing a decision in Kang and Secretary, Department of Social Services[3] at [18] as follows:
[3][2019] AATA 758.
The role of the Tribunal in such a review is to determine for itself what is the correct and preferable decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi). The Tribunal is not limited to reviewing the decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. Its role is ‘to “do over again” what the original decision maker did’: see Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21 at [41] per Perry J (White and Wigney JJ agreeing), referring to Shi at [100] (per Hayne and Heydon JJ) and at [37] (per Kirby J). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at [589] and reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [37].
36.In Carter and Australian Securities and Investments Commission[4] at [51], having referred to a number of the authorities set out in the above paragraphs, I observed:
The above authorities make it clear that the role of the Tribunal is to do over again that which the original decision maker did and, on the evidence before the Tribunal at the time that it makes its decision, exercising the same discretions that the original decision maker had, make what it considers to be the correct or preferable decision. That is not, as asserted by the Applicant, an exercise in considering what errors the delegate made. It will be an exercise in considering the evidence that was presented to the delegate, and any further evidence put to the Tribunal by the parties, and forming its own view as to what the correct or preferable decision is.
37.The role of the Tribunal on an AAT second review is not to determine whether there is evidence or material “sufficient to set aside the AAT1 decision”, the role is for the Tribunal to “[form] its own view as to what the correct or preferable decision is”[5] or, as Hill J put it in Comptroller-General of Customs v Akai Pty Ltd[6] at 521:
… [to work] out, as a further step in administration, what it considers the decision ought to be: cf Mobil Oil Australia Pty Limited v Commissioner of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 at 502 per Kitto J; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-415 per Bowen CJ and Deane J, and more recently see Liedig v Commissioner of Taxation (1994) 50 FCR 461.
[4][2020] AATA 809.
[5]Carter and Australian Securities and Investments Commission [2020] AATA 809 [51].
[6](1994) 50 FCR 511.
Accordingly, the question that must be determined in the present application is the fate of the decision in AAT1.
decsion in summary
KGLC, was born in 2004. His father is a United States citizen, and his mother is an Australian citizen. KGLC is an Australian citizen by descent. In March 2006, he was diagnosed with a disability sufficient, under the Act, to qualify for the DSP. At the age of 10 KGLC relocated to Australia with his mother. On 4 April 2020, KGLC applied for a Disability Support Pension (DSP). His application for a DSP was unsuccessful on review because the Authorised Review Officer found that KGLC did not have the required “10 years qualifying Australian residence” under the Act.
In determining this application, I have considered what the International Agreements Act agreed between Australia and the United States has to say about equivalent periods of residence in the context of a disabled child with a disabled US veteran father. This is only the second occasion on which the Tribunal in this Division has been required to interpret and apply that International Agreements Act. After considering the evidence, the relevant authorities, and the International Agreements Act between Australia and the United States, I have found that KGLC did have an equivalent period of qualifying residence as at the date of his application.
On that basis, the decision on review, being the decision of AAT1 made on 11 February 2021, affirmed and the Secretary should make a full assessment of KGLC’s DSP entitlement from the date of his application.
facts
KGLC was born in the Federal Republic of Germany in January 2004 and lived in the United States of America from the age of 3.[7] KGLC’s mother TV is an Australian citizen and his father ELV, a citizen of the United States of America (US), was stationed in Germany as an officer with the United States Army (US Army).
[7]T3, p 14 [5]; T12, pp 192-193
KGLC acquired Australian citizenship by registration in February 2004, under sub-div A of Div 2 of Pt 2 of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).[8] KGLC is also a citizen of the United States.[9]
[8]Screenshot from the Department of Home Affairs’ Client Service Portal in respect of KGLC dated 13 May 2021; T50, p 342.
[9]KGLC’s movement records as at 12 May 2021 (movement records), Departure on 17 August 2013.
Notwithstanding earlier trips to/from Australia, KGLC left the US and settled in Australia in November 2014.[10]
[10]Movement records; T12, pp 192, 199; T17, p 223; T39, p 293; T40, p 297; T45, p 314 cf T24.
On 12 February 2020, KGLC submitted a claim for a DSP with Centrelink.[11] That first application was rejected on 21 February 2020, on the basis that KGLC did not provide sufficient medical evidence for Centrelink to assess his claim.[12]
[11]T12.
[12]T20, p 233.
On 21 March 2020, KGLC submitted a second claim for a DSP, on the basis that he suffered from Asperger’s syndrome and anxiety, diagnosed on 3 March 2006 (when he was 2 years and 1 month old).[13]
[13]T23; T24.
On 2 April 2020, a Commonwealth psychologist formed the opinion that KGLC was not medically eligible for a DSP, based on the material provided to date.[14] Consequently, on 4 April 2020, the KGLC’s second claim was rejected on medical grounds.[15]
[14]T25.
[15]T26.
KGLC sought internal review of that second refusal decision, and he subsequently provided Services Australia (Centrelink) with the opinion of his general practitioner, Dr Thomas Cherukara,[16] (Dr Cherukara) dated 16 April 2020. Dr Cherukara expressed the following opinion:
[KGLC] has Asperger’s syndrome/ADD/anxiety.
Date of diagnosis -3/3/2006.
Treatment-OT, antidepressant, counselling.
[T]his will affect ability to study and learn new skills.
This is permanent, as it[’s] genetic, no room for improvement except keeping him stable on medication and other forms of therapy.
[16]T28.
On 3 August 2020, a second Commonwealth psychologist, Dr xx, recommended that KGLC undergo a job capacity assessment in light of the opinion of Dr Cherukara.[17]
[17]T32.
That job capacity assessment was conducted on 14 August 2020. The author of that assessment, a third Commonwealth psychologist, relevantly formed the view that KGLC suffered from Autism, which has a recommended rating of 20 points pursuant to Table 7 of the Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables)[18] and that he had a work capacity of 0-7 hours per week.[19]
[18]T5, pp 111-115; Table 7 relates to Brain Function.
[19]T33.
On 17 September 2020, a government-contracted clinical psychologist agreed with that assessment, namely that KGLC was medically eligible for a DSP.[20]
[20]T34.
However, on 23 September 2020, KGLC’s second claim for a DSP was rejected on residence grounds.[21] The delegate found that KGLC had been an Australian resident for 5 years and 2 months, but that he did not have any “US Social Security periods” that could be aggregated, in accordance with the terms of the US Agreement, to meet the residence requirements for a DSP.[22]
[21]T37, pp 289-272
[22]T37, p 289.
KGLC sought internal review of that refusal decision on residency grounds on the same day, under Part 4 of the Administration Act.[23]
[23]T35; T38.
On 22 October 2020, an ARO affirmed the refusal decision, relevantly finding:[24]
…
However, you have been assessed as not residentially qualified. You have less than 6 years of qualifying residency in Australia and you do not have a qualifying residence exemption, such as refugee status. Your medical conditions were diagnosed before you came to Australia and on your claims it was advised that your continuing inability to work commenced either in Germany or the United States of America.
Qualification for Disability Support Pension varies under different international agreements. Many agreements are based on periods of working life residency in countries other than Australia. They can then be dependent on contributions that a person has made to those countries.
In your case, your claim for Disability Support Pension has been reviewed under both the [US Agreement] and the German Agreement. Both agreements refer to ‘coverage’ in the respective countries being added to periods of Australian residency to achieve the required 10 years of residency. The [US Agreement] says coverage is a period of time in which a person was employed and the German Agreement says this is a period of time in which a person makes contributions. You do not meet the criteria as you were not of working age in either Germany or the United States of America, so you were not employed or making contributions.
[24]T40.
issues
The Applicant submits that the issue to be determined in this application is whether KGLC can avail himself of the relevant provisions of the US Agreement to meet the residence requirements for the grant of a DSP. Properly put in the terms adopted by the US Agreement, this requires a determination of whether or not KGLC can satisfy the requisite “quarter(s) of coverage under the laws of the United States, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States”.
hearing
The matter was first heard in Perth on 28 October 2021, which resulted in an adjournment. The hearing resumed on 11 May 2022. The Applicant was represented by his mother, TV. The Respondent was represented by Mr J Papalia of the Australian Government Solicitor. Both representatives appeared in person at the first hearing and via video conference at the resumed hearing.
legislation and policy
Legislation
The relevant law relating to DSP is contained in the Social Security Act 1991 (the Social Security Act) and the Administration Act. The relevant policy is contained in the Guide to Social Security Law (the Guide),[25] which ought to be applied unless there are cogent reasons for departing from it.[26]
[25]Department of Social Services, ‘Guides to Social Policy Law’ Social Security Guide, version 1.295.
[26]Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.
Pursuant to sub-s 36(1) of the Administration Act, the Secretary (and the Tribunal on review) is obliged to determine the KGLC’s claim for a DSP in accordance with the social security law. That term is relevantly defined by s 23(17) of the Social Security Act to include that act, the Administration Act and the Social Security (International Agreements) Act 1999 (International Agreements Act).
The Social Security Act sets out the eligibility criteria for the DSP in Pt 2.3.

The Administration Act provides for the methods of making a new claim (and for reviewing such claims). The International Agreements Act relevantly sets out the conditions of receiving social security in Australia, for a national of a country with which Australia has entered into an agreement.
Sub-section 94(1) of the Social Security Act relevantly sets out the qualification criteria for a DSP, as follows:
94       Qualification for disability support pension
(1)       A person is qualified for disability support pension if:
(a)       the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)       one of the following applies:
(i)        the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d)       the person has turned 16; and
(da)      in a case where the following apply:
(i) the person is under 35 years of age or is a reviewed 2008.2011 DSP starter;
(ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
iii) if the person has one or more dependent children. the youngest dependent child is 6 years of age or over;
iv) the person meets any participation requirements that apply to the person under section 94A; and
(e)       the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)      is not an Australian resident; and
(B)      is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea)      one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
The qualification criteria in sub-s 94(1) of the Social Security Act are cumulative, and sub-ss 94(1)(c) and 94(1)(e) are interrelated.
Sub-sections 7(2) and 7(5) of the Social Security Act relevantly provide:
(2)       An Australian resident is a person who:
(a)       resides in Australia; and
(b)       is one of the following:
(i)        An Australian citizen;
…
(5)       A person has 10 years qualifying Australian residence if and only if:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) the person has been an Australian resident during more than one period and:
(i)        at lease one of those periods is 5 years or more; and
(ii)       the aggregate of those periods exceeds 10 years.

Section 42 and cl 4 of sch 2 of the Administration Act requires the Tribunal to determine KGLC’s eligibility for a DSP on 21 March 2020 (the date of his claim), or within 13 weeks following: See Gallacher v Secretary, Department of Social Services.[27]
[27][2015] FCA 1123; (2015) 68 AAR 1 at [26]-[28].
The International Agreements Act provides for agreements between Australia and other countries in relation to reciprocity in social security or superannuation matters. Section 5 provides:
Scheduled international social security agreements
(1) For the purposes of a provision of the social security law, an agreement is a scheduled international social security agreement if:
(a) the agreement is between Australia and another country; and
(b) the agreement relates to reciprocity in social security or superannuation matters; and
(c) the text of the agreement is set out in a Schedule to this Act.
(2) The reference in subsection (1) to a scheduled international social security agreement includes a reference to such an agreement as amended, or otherwise affected in its operation, by a further agreement or further agreements between Australia and the other country concerned.
The text of the US Agreement is set out in sch 13 of the International Agreements Act.[28] Section 6 of the International Agreements Act relevantly provides in sub-sections (1) and (2) that:
Overriding of social security law by scheduled international social security agreements
(1) The provisions of a scheduled international social security agreement have effect despite anything in the social security law.
(2) Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law.
[28]T5, pp 58-80.
Section 4 of the International Agreements Act provides that that Act is part of the social security law. Sub-section 23(17) of the Social Security Act also provides that a reference in that act to the “social security law” is a reference to a provision of that act, the Administration Act or any other Act that is expressed to form part of the social security law in Australia.
The US Agreement is relevantly required to be interpreted in accordance with the principles which guide the interpretation of international agreements of this kind, described in Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous.[29]
[29] [2013] FCAFC 75; (2013) 231 FCR 532 [52]-[56] (Mahrous).
The US Agreement
The relevant act in the United States is also the Social Security Act[30] (US Social Security Act).
[30] United States Code, Social Security Act, 42 U.S.C. §§ 301-1305.
Part I of the US Agreement in relation to “General Provisions” provides by Article 1(1) that “[f]or the purpose of this Agreement”, various terms have the meaning specified. Relevantly, paragraphs (e)-(i) provide:
(e) "laws" means, as regards the United States, the laws and regulations specified in subparagraph 1(a) of Article 2, and as regards Australia, the laws specified in subparagraph 1(b)(i) of Article 2 except in relation to the application of Part II of the Agreement (including the application of other Parts of the Agreement as they affect the application of that Part) where it means the laws specified in subparagraph 1(b)(ii) of Article 2;
(f) "national" means, as regards the United States, a national of the United States as defined in Section 101, Immigration and Nationality Act, as amended, and as regards Australia, a citizen of Australia;
(g) "period of Australian working life residence", in relation to a person, means, unless otherwise provided in this Agreement, a period:
(i) defined as such in the laws of Australia; and
(ii) during which the person was employed or self-employed or the person's employer was subject to the laws specified in subparagraph 1(b)(ii) of Article 2;
but does not include any United States period of coverage deemed pursuant to Article 9 to be a period in which that person was an Australian resident.
(h) "social security laws" means, in relation to Australia, all the Acts forming the social security law without any limitation, including the limitation imposed by Article 2.
(i) "United States period of coverage" means a period credited as a quarter of coverage under the laws of the United States, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States;
(Emphasis added.)
Article 1(2) then provides that any term used in the US Agreement that is not defined in Article 1 shall have the meaning assigned to it in the “applicable laws”. Article 2(1) relevantly provides:
For the purpose of this Agreement, the applicable laws are:
(a) As regards the United States, the laws governing the Federal old-age, survivors, and disability insurance program:
- Title II of the [US Social Security Act] and regulations pertaining thereto, except sections 226, 226A and 228 of that title and regulations pertaining to those sections,
- Chapters 2 and 21 of the Internal Revenue Code of 1986 and regulations pertaining to those chapters;
(b) As regards Australia,
(i) the Acts forming the social security law insofar as the law provides for, applies to or affects the following benefits:
(B) disability support pension for the severely disabled;
(ii) the law concerning the superannuation guarantee (which at the time of signature of this Agreement is contained in the Superannuation Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Regulations).
(Emphasis added).
Relevantly, under Title II - Federal Old-Age, Survivors, and Disability Insurance Benefits (Title II) the US Social Security Act provides for the eligibility of disabled children for benefits at s 202, as follows:
(1)(d)(1)     Every child (as defined in section 216(e)) of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, if such child—
(A)      has filed application for child’s insurance benefits,
(B) at the time such application was filed was unmarried and (i) either had not attained the age of 18 or was a full-time elementary or secondary school student and had not attained the age of 19, or (ii) is under a disability (as defined in section 223(d)) which began before he attained the age of 22, and
(C)      was dependent upon such individual—
…
shall be entitled to a child’s insurance benefit for each month, beginning with—
…
Entitlement of any child to benefits under this subsection on the basis         of the wages and self-employment income of an individual entitled to          disability insurance benefits shall also end with the month before the         first month for which such individual is not entitled to such benefits       unless such individual is, for such later month, entitled to old-age      insurance benefits or unless he dies in such month. No payment under this paragraph may be made to a child who would not meet the          definition of disability in section 223(d) except for paragraph (1)(B)      thereof for any month in which he engages in substantial gainful activity.
(2) Such child’s insurance benefit for each month shall, if the individual           on the basis of whose wages and self-employment income the child           is entitled to such benefit has not died prior to the end of such month, be equal to one-half of the primary insurance amount of such     individual for such month. Such child’s insurance benefit for each   month shall, if such individual has died in or prior to such month, be equal to three-fourths of the primary insurance amount of such individual.
(Emphasis added.)
In determining the eligibility of a child under Title II, s 221 of the US Social Security Act makes provision for rules relating to the making of “Disability Determinations” as a key element in assessing the eligibility of persons, including eligible children. The relevant section is as follows:
DISABILITY DETERMINATIONS
1)In the case of any individual, the determination of whether or not he is under a disability (as defined in section 216(i) or 223(d)) and of the day such disability began, and the determination of the day on which such disability ceases, shall be made by a State agency…
(2)The disability determinations described in paragraph (1) made by a State agency shall be made in accordance with the pertinent provisions of this title and the standards and criteria contained in regulations or other written guidelines of the Commissioner of Social Security pertaining to matters such as disability determinations, the class or classes of individuals with respect to which a State may make disability determinations (if it does not wish to do so with respect to all individuals in the State), and the conditions under which it may choose not to make all such determinations. In addition, the Commissioner of Social Security shall promulgate regulations specifying, in such detail as the Commissioner deems appropriate, performance standards and administrative requirements and procedures to be followed in performing the disability determination function in order to assure effective and uniform administration of the disability insurance program throughout the United States.
…
(Emphasis added).
One source of “standards and criteria contained in regulations or other written guidelines…pertaining to matters such as disability determinations, the class or classes of individuals with respect to which a State may make disability determinations…” appears at Title XVI Supplemental Security Income for the Aged, Blind, or Disabled (Title XVI)[31].
[31]US Social Security Act s 1601.
Section 1601 of the US Social Security Act also explains the purpose of the relevant appropriations as being “to provide supplemental security income to individuals who have attained age 65 or are blind or disabled”. (Emphasis added.) The eligibility criteria under the US Social Security Act are spelled out as follows:[32]
BASIC ELIGIBILITY FOR BENEFITS
Every aged, blind, or disabled individual who is determined under part A to be eligible on the basis of his income and resources shall, in accordance with and subject to the provisions of this title, be paid benefits by the Commissioner of Social Security.
(Emphasis added.)
[32]US Social Security Act s 1602.
Further:[33]
[33]US Social Security Act ss 1611; 1614.
Part A—Determination of Benefits
ELIGIBILITY FOR AND AMOUNT OF BENEFITS
Definition Of Eligible Individual
Each aged, blind, or disabled individual who does not have an eligible spouse and—
(A) whose income, other than income excluded pursuant to section 1612(b), is at a rate of not more than $1,752 (or, if greater, the amount determined under section 1617) for the calendar year 1974 or any calendar year thereafter, and
(B) whose resources, other than resources excluded pursuant to section 1613(a), are not more than (i) in case such individual has a spouse with whom he is living, the applicable amount determined under paragraph (3)(A), or (ii) in case such individual has no spouse with whom he is living, the applicable amount determined under paragraph (3)(B),
shall be an eligible individual for purposes of this title.
…
Aged, Blind, Or Disabled Individual
For purposes of this title, the term “aged, blind, or disabled individual” means an individual who—
(A) is 65 years of age or older, is blind (as determined under paragraph (2)), or is disabled (as determined under paragraph (3)), and
(B)(i) is a resident of the United States, and is either (I) a citizen or (II) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law (including any alien who is lawfully present in the United States as a result of the application of the provisions of section 212(d)(5) of the Immigration and Nationality Act), or
(ii) is a child who is a citizen of the United States, and who is living with a parent of the child who is a member of the Armed Forces of the United States assigned to permanent duty ashore outside the United States.
(Emphasis added.)
The structure of this benefit scheme is familiar. Under Title II of the US Social Security Act, a disabled child in the United States can apply for a disability determination to obtain a disability social security supplement benefit. In order to be eligible, Title XVI of the US Social Security Act requires that the child must be disabled (for the purposes of that act) and either be:
(a)resident in the US or
(b)residing with a member of the US Armed Services “assigned to permanent duty ashore outside the United States”.
Importantly, the residency requirements under the US Social Security Act discussed above provide for child eligibility for a relevant social security benefit (including a supplementary disability benefit), either on the basis of a contributing parent (such as where an eligible parent dies before a child in that country reaches majority) or purely on the basis of the child’s disability determination.
Relevantly for present purposes, Part II of the US Agreement at sch 13 of the International Agreements Act contains provisions relating to coverage of persons. Part III then contains provisions relating to Australian and United States benefits.
Article 9 of the US Agreement relevantly provides:
Totalisation in Relation to Australian Benefits
1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
(a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, for that benefit under the laws of Australia;
(b) a period of Australian working life residence equal to or greater than the period identified in accordance with paragraph 4 for that person; and
(c) a United States period of coverage,
then for the purposes of a claim for that Australian benefit, that United States period of coverage shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the laws of Australia, to be a period as an Australian resident.
2. For the purposes of paragraph 1, where a person:
(a) has been an Australian resident for a continuous period which is less than the minimum continuous period required by the laws of Australia for entitlement of that person to a benefit; and
(b) has accumulated United States periods of coverage in two or more separate periods that equal or exceed in total the period referred to in subparagraph (a),
the total of the United States periods of coverage shall be deemed to be one continuous period.
For all purposes of this Article, where a period as an Australian resident and a United States period of coverage coincide, the period of coincidence shall be taken into account once only by Australia as a period as an Australian resident but when it is not possible for the United States Agency to determine the time when specific periods of coverage were completed in any one calendar year, it shall be assumed that those periods of coverage do not coincide with periods in that year as an Australian resident but in no case shall the total of all those periods exceed one calendar year.
The minimum period of Australian working life residence to be taken into account for the purposes of paragraph 1 shall be:
(a) for the purposes of an Australian benefit that is payable to a person who is outside Australia, the minimum period required shall be 12 months, of which at least 6 months must be continuous; and
(b) for the purpose of an Australian benefit that is payable to a person who is in Australia, there shall be no minimum period.
Application of the US Agreement to the present circumstances
KGLC’s entitlement to a DSP is to be determined having regard to sub-s 94(1) of the Social Security Act and any provisions of the US Agreement that are applicable to the requirements in sub-s 94(1).
An article of the US Agreement may, when read with other articles, override a provision of the Act: Mahrous at [51]; Charan v Secretary, Department of Social Services [2016] FCAFC 175; (2016) 247 FCR 422 at [46]-[47].
was KGLC eligible for dsp?
It is common ground between the parties that, given that KGLC’s qualifying diagnosis can be traced back to 3 March 2006, all that remains to be satisfied to determine his eligibility for a DSP is the calculation of is his 10 years’ qualifying residence period under the Act (the residency requirement).
The Applicant contends that KGLC cannot satisfy this residency requirement, because he was not ordinarily resident in Australia until 25 November 2014. By this rationale, KGLC cannot qualify for DSP in Australia until 25 November 2024. The Applicant’s submissions to this effect on 2 July 2021 were:[34]
[34]Applicant’s Statement of Facts, Issues and Contentions dated 2 July 2021 p 10.
Sub-section 94(1)(e) of the Social Security Act
45. [KGLC] does not meet sub-s 94(1)(e)(i) because he became an “Australian resident” for the purposes of the Social Security Act on 25 November 2014, and the medical evidence supports a finding that he has had a continuing inability to work from 3 March 2006.
46. [KGLC] does not meet sub-s 94(1)(e)(ii) because he does not have 10 years “qualifying Australian residence” (as defined in sub-s 7(5) of the Social Security Act), as he has been an Australian resident for less than 10 years (namely just under 5 years and 4 months’ continuous residence at the date of claim).
47. [KGLC] does not meet sub-s 94(1)(e)(iii) because, whilst he was born in Germany, and is a dependent child of an Australian citizen, he was not the dependent child of an Australian resident in March 2006. Rather, the family unit were resident in Germany and/or the United States at that time.
Totalisation under the US Agreement
48. Article 9(1) would allow [KGLC] to aggregate any “United States period of coverage” to his period of Australian residence in order to meet the requirements in sub-s 94(1)(e)(ii) of the Social Security Act.
49. However, “United States period of coverage” is relevantly defined in Art 1(1)(i) of the US Agreement to mean “a period credited as a quarter of coverage under the laws of the United States, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States”.
50. The US Agreement relevantly and specifically “picks up” the following laws of the United States in Art 2(1)(a), as the applicable laws for the purposes of the Agreement:
50.1. Title II of the [US Social Security Act] and regulations pertaining thereto, except sections 226, 226A and 228 of that title and regulations pertaining to those sections;
50.2. Chapters 2 and 21 of the Internal Revenue Code of 1986 and regulations pertaining to those chapters.
In response to these submissions, KGLC submitted as follows:[35]
[KGLC]’s Father [ELV] is retired US Army who paid taxes for 20+ years as an Active Duty Soldier. He is entitled to Social Security including SSDI[36] and is receiving a (DVA) pension and is on a 90% Disability Pension.
[KGLC] is an unmarried, dependent child and as such would be entitled to benefits [in the US]
[35]R2/Email Submission dated 18 February 2022.
[36]US Social Security Disability Insurance (SSDI).
Also included in KGLC’s email submission was evidence corroborative of the foregoing asserted facts, in the form of a US Department of Veteran’s Affairs benefit summary for ELV; and an extract of the US Department of Social Security online eligibility criteria for Supplemental Security Income for Children affected by disability, who are otherwise entitled to claim benefits in the US, including children of veterans.

Accordingly, KGLC contends that ELV, being KGLC’s father, was eligible under US law for Social Security benefits of a type identified in the International Agreement Act. KGLC further contends that, since 30 September 2017, KGLC’s father has been in receipt of benefits in the US, albeit Veterans Affairs Disability benefits. Any benefit received by ELV by virtue of his prior military service is not relevant to the question of whether or not ELV holds a concurrent entitlement to a Social Security benefit, however, one suspects that a DVA disability benefit may well be paid at a higher rate and on more advantageous terms than a concurrent Social Security benefit entitlement in the US.
There is nothing before the Tribunal to suggest that ELV is disentitled to US Social Security benefits of a type falling within the “Totalisation” arrangements under the International Agreement Act. To the contrary, the evidence before the Tribunal suggests that, although unclaimed, such an entitlement does in fact accrue to ELV.
The initial question then, properly, becomes what entitlement (if any) KGLC has under the relevant US laws to a benefit falling within the contemplation of the International Agreements Act.
Following a hearing of the matter on 28 October 2021, the Tribunal issued direction in the following terms:
1On or before 17 January 2022, the Applicant to file with the Tribunal and serve on the Respondent further written submissions regarding the questions discussed at hearing, regarding the Applicant’s residency in the United States of America (US) and Australia .
2In particular, the Tribunal seeks clarification on the Respondent’s contentions regarding the interpretation of sub-section 94(1)(e) of the Social Security Act 1994 (Cth), taking in to consideration:
(a)the relevant Articles in Schedule 13 of the Social Security (International Agreements) Act 1999 (Cth) (the International Agreements Act), being:
(i)     article 1, particularly para 1(e);
(ii)    article 2, particularly para 1(a);
(iii)   articles 7–9;
(b)the relevant US legislative/regulatory provisions pertaining to those articles, being those referred to in article 2 para 1(a) of the International Agreements Act;
(c)the relevant guidance provided by the United States (US) Government to assist the interpretation of the relevant US legislative/regulatory provisions, being:
(i)     US Social Security Administration Publication No. 05-10029, Disability Benefits (April 2021); and
(ii)    US Social Security Administration Publication No. 05-10026, Children with Disabilities (February 2021); and
(d)considering the expressio unius principle; the effect, if any, of the above guidance documents given the statement in article 2 para 2 of the International Agreements Act.
Following receipt of these submissions, a further hearing was held with the parties on 11 May 2022 and further directions were made.
In response to those directions, the Applicant expressed the following views:
The decision of the Tribunal in Re Burnside and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AAT 1048 (Burnside)
22. As the Applicant contended in the AFS,[37] the decision of the Tribunal in Burnside is directly analogous and, in the Applicant’s respectful submission, relevantly indistinguishable from the present case.
[37]Referring to the Applicant’s further submissions dated 16 February 2022.
23. Like the case currently before the Tribunal, Burnside also involved a young man who met the disability requirements for being granted DSP but did not meet the residence requirement in s 94 of the [US Social Security Act].

He had also sought to rely on provisions of the US Agreement in order to qualify for the DSP. Given that it was the first case in which the Tribunal was required to consider and apply Articles 1, 2 and 9 of the US Agreement, both parties agreed that it would assist the Tribunal to seek further guidance from the US Social Security Administration (US SSA): see Burnside at [27]-[28]. The Tribunal had made a detailed direction set out at [32] with a list of questions directed to the Applicant’s Department which was in turn forwarded to the Office of International Programs of the US SSA.

The answers received are “reproduced in full in an Appendix to this decision as it may be of assistance should any similar applications arise”: [33].
24. In summary, the US SSA advised, and the Tribunal found, that as the entitlement to SSDI benefits is calculated on the basis of contributions calculated by reference to periods of coverage, “a child cannot receive quarters of coverage or credits by virtue of his or her parent having earned social security coverage unless the parent is disabled, retired or dead and had paid social security taxes while employed”: at [34]. Thus it was found that the US Agreement did not assist the applicant in that case (and see generally Burnside at [30]- [34]).
25. The key points made by the US SSA in its response to the Tribunal in Burnside were as follows:
25.1. A: the US SSA clarified the definition of the term “United States period of coverage”;
25.2. In B, it explained that for the purposes of the US SSDI Program (old age, survivors insurance and disability insurance), “quarters of coverage” refers to “any period of payment of US Social Security contributions based on wages for employment or on self-employment income”.
25.3. In C, the US SSA made it clear that “a child cannot receive quarters of coverage” by virtue of a parent’s contributions, though there are certain benefits that might be available to dependent children so long as the child has a parent(s) who is disabled or retired and entitled to Social Security benefits; or a parent who died in certain cases.
25.4. The US SSA clarified in D that the right to a benefit based on contributions through the social security system was distinct from the non-contributory benefits available through Supplemental Security Income (SSI), but that latter program does not fall within the US Agreement (and see also F).
25.5. E: Aside from limited access to dependants’ benefits under the SSDI scheme and what is available via SSI, there are other state or local government schemes of assistance for young people with disability but they are residence based.
25.6. Critically, in G the Office advised that there are no specific childhood disability benefits under the Social Security Program, other than those payable to dependent minor children of a retired, disabled or deceased insured worker. The key requirement is as follows:
For a disabled adult to become entitled to this “child” benefit, one of his or her parents:
• Must be receiving Social Security retirement or disability benefits; or
• Must have died and worked long enough ….
26. Like Rory Burnside, the Respondent in this case has no independent earnings history. Nor is there any evidence before the Tribunal that he has a parent in receipt of SSDI payments in which case he may be eligible for some dependent benefit under US law: see the answers above, most notably to Questions C and G in the Appendix, and see also the US SSA publication, Disability Benefits, referred to and extracted in the AFS at [10], and see also AFS [11]-[18].
27. Even if it were the case (about which there is no evidence before the Tribunal) that [KGLC] was eligible to some dependent benefit based on his father’s receipt of payments that fall within the scope of the US Agreement, that would have no flow on effect to his eligibility for an Australian DSP. In other words, what might be seen as a “derived benefit” (to use the Tribunal’s terminology) would have no transferable application in Australia. There is simply no basis for finding that some “derived benefit” – a possible eligibility for dependent benefits in the US if his father meets certain criteria - could assist in meeting the residence requirement for DSP. This is because the relevant criterion for a person to avail themselves of the provisions in the US Agreement that can assist in meeting the residence requirements is that a person must have a “United States period of coverage” as defined in Article 1.1(i). There is no basis for treating such a period of coverage as transferable to anyone, including a dependent child of a person who relevantly has quarters of coverage.
28. Since the decision in Burnside, no changes have been made to the US Agreement. Nor has there been any relevant change to the residence requirements that must be met in order to qualify for DSP.
29. For the purpose of this case, the Applicant’s department has sought further advice from its US counterpart in relation to the specific case that is before the Tribunal. That advice was provided to the Tribunal and to [KGLC] with the AFS.
30. In summary, the key points in that advice dated 4 February 2022 are as follows:
30.1. Question A1: A 17 year old unmarried US citizen who has not completed at least 6 quarters of coverage under US law cannot rely on his parent’s coverage to be entitled to a social security disability insurance payment under US law, other than by means of a payment as a dependant of a person who has the requisite coverage. However, “the insured worker must be receiving Social Security retirement or disability benefits or be deceased for the child to be eligible for benefits”.
30.2. Question A3: “[D]isabled children will not be awarded with any periods of coverage under Article 9.1(c) of the Agreement unless he or she worked in covered employment for that time” or otherwise meets the narrow other qualifying conditions involving active military service between 1940 and 1956, or internment as a person of Japanese ancestry between December 1941 and December 1946. The child can receive benefits as a dependant provided the relevant parent “meets the applicable coverage requirements for a benefit”.
31. An earlier advice from that office dated 16 July 2021, also attached to the AFS (page 13) further advised that “Article 2(1)(a) narrowly defines the applicable US law for purposes of the Agreement and does not include the SNAP program. The Agreement does not permit qualifications for other federal programs, such as SNAP, as a proxy for earning quarters of coverage for the US Social Security System”.
32. It will be recalled that the AAT1 had relied on information about the Supplemental Nutrition Assistance Program (SNAP) program (formerly known as Aid to Families with Dependent Children (AFDC), and more colloquially known as the food stamps program) to find (erroneously) that the eligibility criteria for that program could be taken into account under the US Agreement.
33. In summary, the advice received from US SSA in 2006 and that received in 2021/2022 is entirely consistent and clear. The only basis upon which a person who has no quarters of coverage based on earnings from employment or from self-employment, under Title II of the US Social Security Act (see the detailed account of those provisions in AFS at [6]-[7]) can qualify for any disability payment via the Social Security system on which the US Agreement is based (as opposed to any entitlement under SSI or some other scheme that is not included in the US Agreement) would be if the person was a dependent child of a parent who was in receipt of a payment under that scheme, for which the parent had qualified by means of her or his contributions, or the parent was dead but would have been entitled. And any such qualification would potentially assist [KGLC] only with respect to receipt of a US dependent benefit in the circumstances described. It would not assist him in meeting the residence requirement for DSP under the [US Social Security Act] . The US Agreement does not change that situation.
34. Turning to the case before the Tribunal, as noted above, the Applicant repeats and relies on what is said in the SOFIC and the AFS, and in particular what is explained at AFS [9]-[21].
35. The Applicant contends that there is nothing in the language of the Agreement that would call into question the correctness of the decision in Burnside, nor the interpretation for which the Applicant contends.
“Right to a benefit”?
36. To the extent that it has been suggested that the use of the phrase “right to a benefit” in Article 1.1(i), the provision that defines “United States period of coverage”, provides a basis for an alternative reading of the US Agreement to that contended for by the Applicant, that term must be read in the context of the Treaty as a whole and specifically by reference to other parts of the definition section. These include the following:
36.1. The word “benefit” (see Article 1.1(b)) is defined exhaustively as meaning “a benefit, pension or allowance for which provision is made in the laws of the Party”.
36.2. The term “laws” in relation to the United States is also defined exhaustively: it is defined (Article 1.1(e)) as meaning those set out in Article 2.1(a); i.e., the “laws governing the Federal old-age, survivors, and disability insurance program” (i.e. the SSDI program). These are in turn identified as being Title II of the US Social Security Act and regulations pertaining thereto, other than those provisions specified as not being included. It also includes Chapters 2 and 21 of the Internal Revenue Code of 1986.
37. In the Applicant’s respectful submission there is no scope for reading into Article 1.1(i) any expanded notion of a right to any benefit other than one that is specified as being available by reference to the laws identified in Article 2. The material before the Tribunal makes it clear that the only basis upon which the Applicant could obtain any derivative benefit is, given the relatively narrow scope of the US Agreement, if he had a parent who had, through a United States period of coverage, qualified for and was receiving one of the benefits provided for in Title II of the US Social Security Act. On that basis, and on that basis only, he would have a “derivative” or dependent child entitlement to additional benefits.
38. However, as there is no evidence that [KGLC]’s father is in receipt of a benefit that is either an old age or disability benefit under the [US Social Security Act], and the US Agreement does not cover other types of programs that might provide some financial support for people with disability (such as payments made to veterans by the Veterans’ Administration, in relation to which there is evidence of receipt in 2017, or payments made through the non-contributory SSI scheme), he is unable to avail himself of the provisions of the US Agreement.
39. It follows that, in the Applicant’s respectful submission, there is no basis for the Tribunal to depart from the decision and reasoning of this Tribunal in its 2006 decision in Burnside.
(Emphasis added).
Consideration
Burnside concerned a child who was born in the US in 1987 with congenital blindness, a clef palate, Asperger’s Syndrome and severe epilepsy. The child in that case, having an Australian citizen mother and a US citizen father, became an Australian Citizen by descent in 1988. While in the US, the child was assessed as being eligible for a disability-related Supplementary Security Income (SSI) benefit. Eligibility for that benefit was dependent upon the child’s disability status under the relevant sections of the US Social Security Act.
In approximately September 1997, the child’s family took up residence in Australia.

On 15 May 2003 the child lodged an application for DSP with the Agency. That claim was subsequently rejected by the Agency because the child could not satisfy the 10-year Australian residency requirements, identified above, at s 94(1)(e)(ii) of the Social Security Act. That refusal was thereafter affirmed by the then Social Security Appeals Tribunal and was again affirmed on review by the AAT.
The Applicant in the present matter made the following written submissions relating to the final AAT decision in Burnside:
46. In the Applicant’s respectful submission, there is no basis for the Tribunal to depart from the approach taken in Burnside which is not only not clearly wrong but in the Applicant’s respectful submission, manifestly a correct application of the US Agreement.
46.1. There has been no change to the text of the US Agreement since its commencement in 2002;
46.2. The residence requirement for qualification for DSP has not changed in any relevant manner as is apparent from the text of s 94(1)(e) set out in Burnside at [22];
46.3. There has been no change to the specification of the laws (see Article 1.1(e)) covered by the Agreement (and see Article 2.1(a));
46.4. There has been no change in the very limited scope for payments to the dependent children of those who have a United States period of coverage. As explained in Burnside at [34] (and see Appendix C and G); and by the US SSA again in 2022, [KGLC] would be entitled to a benefit as a dependent child only if he is the child of a parent who was herself or himself in receipt of one of the social security payments that are identified in the US Agreement (see AFS at [19]- [21].)
46.5. The decision in Burnside remains entirely consistent with what is said by the SSA in its explanatory publications:
46.5.1. US Social Security Administration, Benefits for Children with Disabilities, Publication No EN-05-10026 (January 2022); and
46.5.2. US Social Security Administration, Publication No. EN-05-10029 (April 2021).
Without in any way casting shade on the previous decision of the Tribunal in Burnside, it is sufficient for present purposes to dispose of the question of its direct application to the present application by reference to core facts that require Burnside to be materially distinguished in this matter. The Applicant summarised the relevant passage of the decision in Burnside at para [34], referred to in para [46.4] of the extract of submissions above in the following terms:
As explained in Burnside at [34] (and see Appendix C and G); and by the US SSA again in 2022, [KGLC] would be entitled to a benefit as a dependent child only if he is the child of a parent who was herself or himself in receipt of one of the social security payments that are identified in the US Agreement (see AFS at [19]- [21].)
(Emphasis added.)
However, when fully extracted, the relevant portions of the Tribunal’s decision in Burnside actually provide as follows:
Burnside Extract
34. In summary, the advice of the US Social Security Administration confirmed the Tribunals’ understanding of the phrase period of coverage: that such periods of coverage apply to SSDI benefits, old age pensions and survivors insurance; they are calculated on the basis of payments of US social security contributions arising from wages from employment or self employment; that a child cannot receive quarters of coverage or credits by virtue of his or her parent having earned social security coverage unless the parent is disabled, retired or dead and had paid social security taxes while employed; the SSI program is not included in the Agreement; there are no other US Federal disability programs other than SSI and SSDI; SSI eligibility is based on a child and their parent’s income and resources and the child must have marked and severe functional limitations; and that SSI payments are based strictly on need with no relationships to quarters of coverage ie credits do not exist under the SSI program.
Appendix Extract
(C) Are dependent children (under working age) of persons who have earned quarter credits under SSDI eligible to receive disability benefits by virtue of their parents having earned SSDI quarter credits? (i.e. can children receive "credit" for SSDI by virtue of their parents having earned the quarter credits).
No, a child cannot receive quarters of coverage or credits that count toward entitlement to U.S. Social Security benefits by virtue of his or her parent having earned U.S. Social Security coverage. Children may receive benefits as the dependent of a worker who has earned coverage under the system. For example, a child can get benefits if he or she is the worker’s biological child, adopted child or dependent stepchild. (In some cases, a child also could be eligible for benefits on his or her grandparents’ earnings.)
To get benefits, a child must have:
• A parent(s) who is disabled or retired and entitled to Social Security benefits; or
• A parent who died after having worked long enough in a job where he or she paid Social Security taxes.
The child also must be:
•          Unmarried;
•          Younger than 18;
• 18-19 years old and a full-time student (no higher than grade 12); orl8 or older and disabled. (The disability must have started before age 22.)
Benefits stop when the child reaches age 18 unless the child is a student or disabled. If the benefit is payable on the record of a parent entitled to disability or retirement benefits, the child’s benefit would also stop if the parent no longer receives a benefit.
…
(G) How is children’s eligibility to receive disability benefits determined on the SSDI scheme?
There are no specific childhood disability benefits under the Social Security program. Social Security benefits are only payable to dependent, minor children of a retired, disabled or deceased insured worker. Children of a retired, disabled or deceased insured worker need only be unmarried, younger than age 18 (18-19 years old and a full-time student) to receive benefits. A disability determination is only required to continue benefits after age 18 as a disabled adult child.
Social Security benefits for adults disabled since childhood
The Social Security program pays benefits to adults who have a disability that began before they became 22 years old. We consider this Social Security benefit as a "child’s" benefit because it is paid based on a parent’s Social Security earnings record.
For a disabled adult to become entitled to this "child" benefit, one of his or her parents:
•          Must be receiving Social Security retirement or disability benefits; or
•          Must have died and have worked long enough under Social Security.
These benefits are also payable to an adult who received dependents benefits on a parent’s Social Security earnings record prior to age 18, if he or she is disabled at age 18. We make the disability decision using the disability rules for adults.
Social Security disabled adult "child" benefits continue as long as the individual remains disabled. The child does not need to have worked to get these benefits. However, one of the child’s parents must have worked long enough under the U.S. Social Security program to establish entitlement to Social Security benefits.
(Emphasis added.)

It follows then, even relying purely on the authorities cited by the Applicant above, that eligible disabled minor children in the US can establish an entitlement to a needs-based SSI benefit where they are the child of a retired, disabled or deceased insured worker.
To use the language in Burnside, extracted above:
a child cannot receive quarters of coverage or credits that count toward entitlement to U.S. Social Security benefits by virtue of his or her parent having earned U.S. Social Security coverage. Children may receive benefits as the dependent of a worker who has earned coverage under the system.
It is the Applicant’s further submission that the Tribunal should read the foregoing qualifying requirements under the International Agreements Act as being yet further limited by the combination of:
(a)a disabled child’s parentage;
(b)relevant quarters of coverage;
(c)eligibility for one of the specified US benefits; AND
(d)the receipt by the US citizen parent of one of the specified benefits,
as indicated by the following para:
37. In the Applicant’s respectful submission there is no scope for reading into Article 1.1(i) any expanded notion of a right to any benefit other than one that is specified as being available by reference to the laws identified in Article 2. The material before the Tribunal makes it clear that the only basis upon which the Applicant could obtain any derivative benefit is, given the relatively narrow scope of the US Agreement, if he had a parent who had, through a United States period of coverage, qualified for and was receiving one of the benefits provided for in Title II of the US Social Security Act. On that basis, and on that basis only, he would have a “derivative” or dependent child entitlement to additional benefits.
By way of underscoring this emphatic proposition, the Applicant then submitted:
38. However, as there is no evidence that the [KGLC]’s father is in receipt of a benefit that is either an old age or disability benefit under the US Social Security Act, and the US Agreement does not cover other types of programs that might provide some financial support for people with disability (such as payments made to veterans by the Veterans’ Administration, in relation to which there is evidence of receipt in 2017, or payments made through the non-contributory SSI scheme), he is unable to avail himself of the provisions of the US Agreement.
In an attempt to reconcile the authorities relied upon by the Applicant, the Tribunal posed the following questions to the parties in a direction dated 27 October 2022:
1)The Tribunal seeks clarification about the Applicant’s contentions regarding the correct and preferable construction of [Title II of the US Social Security Act], in particular:
a)The Tribunal relevantly notes that [Title II] provides for the eligibility of disabled children for benefits at s 202 as follows:
(1)(d)(1) Every child (as defined in section 216(e)) of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, if such child—
(A) has filed application for child’s insurance benefits,
(B) at the time such application was filed was unmarried and (i) either had not attained the age of 18 or was a full-time elementary or secondary school student and had not attained the age of 19, or (ii) is under a disability (as defined in section 223(d)) which began before he attained the age of 22, and
(C)      was dependent upon such individual—
…
shall be entitled to a child’s insurance benefit for each month, beginning with—
…
Entitlement of any child to benefits under this subsection on the basis of the wages and self-employment income of an individual entitled to disability insurance benefits shall also end with the month before the first month for which such individual is not entitled to such benefits unless such individual is, for such later month, entitled to old-age insurance benefits or unless he dies in such month. No payment under this paragraph may be made to a child who would not meet the definition of disability in section 223(d) except for paragraph (1)(B) thereof for any month in which he engages in substantial gainful activity.
(2)Such child’s insurance benefit for each month shall, if the individual on the basis of whose wages and self-employment income the child is entitled to such benefit has not died prior to the end of such month, be equal to one-half of the primary insurance amount of such individual for such month. Such child’s insurance benefit for each month shall, if such individual has died in or prior to such month, be equal to three-fourths of the primary insurance amount of such individual.
(Emphasis added).
b)In determining the eligibility of an eligible child under Title II Federal Old-Age, Survivors, and Disability Insurance Benefits, Social Security Act [42 U.S.C. 402], s 221 makes provision for rules relating to the making of “Disability Determinations” as a key element in assessing the eligibility of persons, including eligible children. The relevant section of the code is as follows:
DISABILITY DETERMINATIONS [271]
Sec. 221. [42 U.S.C. 421] (a)(1) In the case of any individual, the determination of whether or not he is under a disability (as defined in section 216(i) or 223(d)) and of the day such disability began, and the determination of the day on which such disability ceases, shall be made by a State agency…
(2)The disability determinations described in paragraph (1) made by a State agency shall be made in accordance with the pertinent provisions of this title and the standards and criteria contained in regulations or other written guidelines of the Commissioner of Social Security pertaining to matters such as disability determinations, the class or classes of individuals with respect to which a State may make disability determinations (if it does not wish to do so with respect to all individuals in the State), and the conditions under which it may choose not to make all such determinations. In addition, the Commissioner of Social Security shall promulgate regulations specifying, in such detail as the Commissioner deems appropriate, performance standards and administrative requirements and procedures to be followed in performing the disability determination function in order to assure effective and uniform administration of the disability insurance program throughout the United States.
…
(Emphasis added).
c)One source of relevant “standards and criteria contained in regulations or other written guidelines” “pertaining to matters such as disability determinations, the class or classes of individuals with respect to which a State may make disability determinations” described in the section appears at Title XVI Grants to States for Aid to the Aged, Blind, or Disabled, Social Security Act [42 U.S.C. 1381 note -1385 note]. Section 1601 [42 U.S.C 1381] of the Social Security Act explains the purpose of this aspect of the relevant appropriations as being “to provide supplemental security income to individuals who have attained age 65 or are blind or disabled”.
The eligibility criteria under the US Social Security Act are adumbrated as follows:
BASIC ELIGIBILITY FOR BENEFITS
SEC. 1602. [42 U.S.C. 1381a] Every aged, blind, or disabled individual who is determined under part A to be eligible on the basis of his income and resources shall, in accordance with and subject to the provisions of this title, be paid benefits by the Commissioner of Social Security.
d)        The criteria further provide:
Part A—Determination of Benefits
ELIGIBILITY FOR AND AMOUNT OF BENEFITS
Definition Of Eligible Individual
SEC. 1611. [42 U.S.C. 1382] (a)(1) Each aged, blind, or disabled individual who does not have an eligible spouse and—
(A)whose income, other than income excluded pursuant to section 1612(b), is at a rate of not more than $1,752 (or, if greater, the amount determined under section 1617) for the calendar year 1974 or any calendar year thereafter, and
(B)whose resources, other than resources excluded pursuant to section 1613(a), are not more than (i) in case such individual has a spouse with whom he is living, the applicable amount determined under paragraph (3)(A), or (ii) in case such individual has no spouse with whom he is living, the applicable amount determined under paragraph (3)(B),
shall be an eligible individual for purposes of this title.
…
Aged, Blind, Or Disabled Individual
Sec. 1614. [42 U.S.C. 1382c] (a)(1) For purposes of this title, the term “aged, blind, or disabled individual” means an individual who—
(A)is 65 years of age or older, is blind (as determined under paragraph (2)), or is disabled (as determined under paragraph (3)), and
(B)(i)          is a resident of the United States, and is either
(I)        a citizen or
(II) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law (including any alien who is lawfully present in the United States as a result of the application of the provisions of section 212(d)(5) of the Immigration and Nationality Act[49]), or
(ii)is a child who is a citizen of the United States, and who is living with a parent of the child who is a member of the Armed Forces of the United States assigned to permanent duty ashore outside the United States.
e)The structure of this benefit scheme is familiar enough. It appears from the foregoing that a disabled child in the United States, under Title II of the US Social Security Act can apply for a disability determination for the purposes of a disability social security supplement benefit. In order to be eligible, Title XVI of the US Social Security Act requires that the child must be disabled (for the purposes of that Act) and either resident in the US or living with a member of the US Armed Services “assigned to permanent duty ashore outside the United States”.
f)The residency requirements under the US Social Security Act discussed above provide for child eligibility for a relevant social security benefit (including a supplementary disability benefit), either on the basis of a contributing parent (such as where an eligible parent dies before a child in that country reaches majority) or purely on the basis of the child’s disability determination.
g)In the present case, it is not in contention that the Applicant’s father was fully qualified to be eligible for a social security benefit under the US Social Security Act when the Applicant was diagnosed with the disability that made him otherwise eligible for the Disability Support Pension.
2)The foregoing examination of the relevant US legislative provisions does not, on its face, appear to be consistent with the summarised advice from US SSA that is referred to in Applicant submissions dated 10 June 2022.
3)The Tribunal seeks further submissions outlining why the prior summary of advice from the US SSA should be preferred to the foregoing analysis of the relevant US legislative provisions.
(Emphasis added.)
A submission in response, dated 27 November 2022 was received from the Applicant.

No further submissions were received from KGLC. Relevantly, the Applicant stated:
10. The Applicant responds to the Tribunal’s commentary on the US Social Security Act, set out in the Direction, as follows:
10.1. Section 202(d)(1) of the US Code, which is extracted in para 1.a of the Direction, is headed “Child’s Insurance Benefits”. It deals with children’s benefits in the context of old age and survivors’ insurance benefits. That is, the child under consideration in s 202(d) must be a child of someone who meets the criteria in s 202(a), i.e., a “fully insured” individual who has attained the age of 62 and has applied for old-age insurance or was entitled to disability insurance immediately prior to retirement age;
10.2. There is no evidence that [KGLC] has a “fully insured” parent who meets those criteria. Nor is there any evidence that [KGLC] has applied for US child’s insurance benefits (cf s 202(d)(1)(A)).
10.3. That provision also requires the child referred to in s 202(d) to have been dependent upon the relevant “fully insured” parent: s 202(d)(1)(C). There is no evidence that [KGLC] was dependent upon his father at the time he applied for the Australian disability support pension. Rather, it can be inferred that he was dependent upon his mother since he was living with her in Australia.
10.4. Section 221, referred to in para 1.b of the Direction, is headed “Disability determinations”. Its provisions relate to the manner in which determinations of whether a person has a disability are to be undertaken by the relevant agencies of the constituent states of the United States. It does not concern “quarters of coverage”, the concept central to the US Agreement. In any event, there is no dispute before the Tribunal about the Respondent’s disability.
10.5. Section 1602 (42 U.S.C. 1381a) of the US Code, referred to in para 1.c of the Direction, provides for Supplemental Security Income for the Aged, Blind and Disabled (SSI). That is not an applicable law for the purposes of the US Agreement. The SSI program is not included within the scope of the US Agreement. It is not funded by social security taxes (which is the underlying rationale for the concept of a quarter of coverage): see Supplementary Submissions of 10 June 2022, referred to at [3.3] above, paras 9; 25.4; and 33 (and see also Publication No. 05-10176, page 1)
11. There is no evidence before the Tribunal from which it could find that [KGLC]’s father is qualified or eligible for a benefit under the US Social Security Act. Rather, the evidence indicates that, as at October 2017, the Respondent’s father was in receipt of benefits from the Department of Veterans Affairs, based on his service in the US military to 30 September 2017. That apparently takes the form of “special monthly compensation” due to service-connected disabilities. There is no provision in the US Agreement for any derivative benefits that relate to Veterans Affairs compensation recipients.
12. In any event, even if it were the case that [KGLC]’s father was eligible for a benefit under the US Social Security Act, about which the Applicant reiterates there is no evidence, the existence of any derived entitlement for US child’s insurance benefits under that Act does not equate to a “United States period of coverage” for the purposes of Art 1(1)(i) of the US Agreement. The term “United States period of coverage”, which is the key qualifying element in the US Agreement, refers to ss 213, 217 and 231 of Title II of the US Social Security Act. There are no other mechanisms under the applicable US laws by which a person in Australia who does not meet the domestic residence requirements can otherwise qualify for a pension. As was noted in the Applicant’s submissions referred to at [3.2] above at [13]-[14], there is no mechanism by which a child can receive quarters of coverage that count toward entitlement to Social Security Disability Insurance (SSDI) by virtue of his parent’s quarters of coverage. It follows that as [KGLC] has not been employed in the United States, he has no quarters of coverage of his own that could be used for the purposes of Art 1(c) of the US Agreement.
(Emphasis added).
Consideration and factual findings
The Applicant has repeatedly contended that “There is no evidence before the Tribunal from which it could find that [KGLC]’s father is qualified or eligible for a benefit under the US Social Security Act”. This emphatic and repeated contention, despite evidence to the contrary having been provided and relied upon by KGLC’s mother throughout the course of proceedings, requires addressing in clear terms. A single example serves to illustrate the inappropriateness of the Applicant’s contentions.
The opening lines of an email submission to the Tribunal by KGLC’s mother, copied to the Applicant and dated 13 June 2022 read:
Evidence was provided (prior to the last hearing date) that [KGLC]’s Father was employed by the US Army from 1997 until he retired in 2017. He receives VA Benefits but doesn’t draw from his SSI/SSDI as far as I’m aware even though deemed 90% disabled by the US Army.
Further to this [KGLC]’s Father paid taxes for those 20 years whilst he was employed by the US Army and gained over 80 quarters of credit during this time. Attached.
Notice was taken of this information, and the inferences that might reasonably be drawn from it about co-extensive US Social Security and Veteran’s Insurance eligibility for a veteran such as KGLC’s father, by counsel for the Applicant at the second hearing on 11 May 2022.[38]
[38]Transcript p 3; p 9.
Accordingly, from the perspective of the model litigant obligations, it is of concern, that such emphatic and factually incorrect submissions should have been maintained by the Secretary in the terms used.
For the avoidance of any doubt, accepting the evidence of [KGLC] disclosed above in its terms, I find that:
(a)KGLC’s US citizen father ELV has been in receipt of a disability benefit from the US Department of Veterans Affairs since being honourably discharged from service on 30 September 2017, due to his accepted service-connected disabilities; and,
(b)Due to the superior DVA benefits available to disabled veterans in the US, ELV has elected to access those benefits, in lieu of the Social Security benefits to which he is undoubtedly eligible; and
(c)By the date of KGLC’s relevant diagnosis (3 March 2006), ELV had relevantly accrued over 40 quarters of coverage and, by his date of discharge from the US Army, ELV had relevantly accrued over 80 quarters of coverage for the purposes of Title II of the US Social Securities Act; and,
(d)As at the date of KGLC’s permanent relocation to Australia (25 November 2014) ELV had accrued over 65 quarters of coverage as defined for the purposes of Title II of the US Social Securities Act; and,
(e)Noting that KGLC lodged his application for a DSP on 12 February 2020, at that date he was a disabled child, whose father is a disabled US citizen, who was himself in receipt of VA disability benefits and, while concurrently being eligible for Social Security benefits had elected to claim his higher VA disability benefit entitlements.
Based on the foregoing findings, and bearing in mind the complexities of the applicable US laws (as defined by Article 1 para (1)(e) of the International Agreements Act), it is sufficient for present purposes to rely on the foregoing extract of part C in the Appendix to the Tribunal’s decision in Burnside:[39]
[39]See above para [56].
Children may receive benefits as the dependent of a worker who has earned coverage under the system. For example, a child can get benefits if he or she is the worker’s biological child, adopted child or dependent stepchild. (In some cases, a child also could be eligible for benefits on his or her grandparents’ earnings.)
To get benefits, a child must have:
• A parent(s) who is disabled or retired and entitled to Social Security benefits; or
• A parent who died after having worked long enough in a job where he or she paid Social Security taxes.
The child also must be:
• Unmarried;
• Younger than 18;
…
It will be appreciated that KGLC meets all the requisite elements of this formulation for eligibility to a benefit falling within the ambit of Title II of the US Social Security Act.
The only remaining question for determination, then, is that of the relevance of such an entitlement to a benefit on the part of KGLC under the US Social Security Act, given that his entitlement is based on his US citizen father’s eligibility for Social Security and not on any “United States period of coverage” attaching to KGLC.
Resolution

It is worth restating the approach to the proper construction of international agreements, such as the US Agreement, espoused by the Court in its decision in Mahrous:[40]
[40]Mahrous [53] – [56] (Kenny, Flick and Kerr JJ).
52.In deciding the issue that arises on this appeal, we have had regard not only to the text of the Agreement, especially article 12(4), but also, in the case of the provisions of the Agreement that have domestic effect despite the social security law, to the principles that guide the interpretation of international agreements. These are the principles set forth in the Vienna Convention on the Law of Treaties (opened for signature on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)) (‘the Vienna Convention’), especially in articles 31 and 32. These principles guide the process of construing provisions of an international agreement where, as under s 6 of the International Agreements Act, they have, by enactment, become part of the law of Australia: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 (‘QAAH’) at 14-16 [34], citing Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65; (1998) 196 CLR 161 (‘Great China Metal’) at 186 [70] and Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189 at 202 [24]- [25] and 230 [128].
53.The effect of articles 31 and 32 of the Vienna Convention has been explained in numerous Australian cases. Thus, for example, McHugh J said in Great China Metal at 186 [70]:
... Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of its object and purpose. Under Art 32, interpretative assistance may be gained from extrinsic sources in order to confirm the meaning resulting from the application of Art 31 or to determine the meaning of the treaty when interpretation according to Art 31 leaves the meaning “ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable”. Those extrinsic sources include the travaux preparatoires and the circumstances of the conclusion and history of the negotiation of the treaty.
54.Earlier, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 255-6, McHugh J referred to the Vienna Convention and continued (omitting citations):
... taking the text as the starting point is consistent with the basic principle of interpretation that courts should focus their attention on the “four corners of the actual text” in discerning the meaning of that text. ...
[T]he mandatory requirement that courts look to the context, object and purpose of treaty provisions as well as the text is consistent with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation.
[I]nternational treaties often fail to exhibit the precision of domestic legislation. This is the sometimes necessary price paid for multinational political comity. ...
55.The principles set out in the Vienna Convention apply to both multilateral and bilateral treaties: see Russell v Federal Commissioner of Taxation [2011] FCAFC 10; (2011) 190 FCR 449 at 455-456 [26]- [29] (Dowsett J, with whom Edmonds J relevantly agreed); Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338 at 349 (Dawson J), 356 (McHugh J); Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 at 604 (Burchett, Hill and Emmett JJ); McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67; (2005) 142 FCR 134 at 143 (Hill, Sundberg and Stone JJ); and R K Gardiner, Treaty Interpretation (Oxford University Press, 2008) p 71.
56.Accordingly, construction of the relevant provisions of the Agreement commences with the text of the Agreement and considered in its context and “in light of its object and purpose”: see Vienna Convention, article 31(1). The context of the Agreement includes the preamble to the Agreement: article 31(2).
(Emphasis added.)
It is agreed between the parties that the present matter falls to be determined on the question of whether or not KGLC is entitled to accumulate any “United States period of coverage” for the purposes of totalising a period of residence as provided at Article 9 para (1) of the US Agreement. Without such an accumulation or “totalisation”, KGLC is presently not entitled to the DSP he is otherwise qualified to receive.
Article 3 of the US Agreement provides as follows:
This Agreement shall apply to any person who:
(a) is or has been an Australian resident; or
(b) is or has been subject to the laws of Australia; or
(c) is or has been subject to the laws of the United States
and, where applicable, to other persons in regard to the rights they derive from a person described above.
(Emphasis added.)
Also, Article 5 of the US Agreement relevantly provides that:
1. Unless otherwise provided in this Agreement, any provision of the laws of a Party which restricts entitlement to or payment of benefits solely because the person resides outside or is absent from the territory of that Party shall not be applicable to persons who reside in the territory of the other Party.
Finally. Article 1 at sub-para (1)(e) states:
“United States period of coverage” means a period credited as a quarter of coverage under the laws of the United States, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States.
The approach I adopt in this instance is that which is recommended by the cited authorities above, namely that the US Agreement should be “interpreted in good faith, in accordance with the ordinary meaning of the terms in their context”.
KGLC clearly falls within the class of persons identified by Article 3, both as a person who has been subject to the laws of the United States and as a person in regard to the rights he may derive from such a person, being his father ELV.
Article 5 expresses the intention of the States party to vitiate any potential restriction against the payment of a benefit to an otherwise eligible person solely on the basis of residency considerations as between the States party. In this application, it is precisely the residency restriction which prevents an otherwise eligible applicant from receiving the claimed benefit.
The best evidence before the Tribunal on the eligibility of a child applicant in the position of KGLC to disability benefits under the applicable US laws (identified at Article 2 para (1)(a) of the US Agreement), is that such a child applicant derives an entitlement to a benefit under those laws by having an eligible parent with the requisite period of coverage.
On this basis, KGLC is entitled to rely on the period of coverage achieved by his US citizen father ELV, which I have found above to exist as an “equivalent period that may be used to establish the right to a benefit under the laws of the United States.”[41]
[41]See above paras [75]–[76].
Accordingly, the Tribunal finds that KGLC meets the residency requirements for the payment of a DSP, pursuant to s 94(1)(e)(ii) of the Act and as modified by Article 9 of Sch 13 of the International Agreements Act.
decision
The Reviewable Decision, being the AAT1 decision dated 11 February 2021 that the Respondent’s claim for payment of a DSP is granted, is affirmed.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Dr C Huntly

.....................[Sgd]..................................................
Associate
Dated: 16 January 2023

Date of hearing: 28 October 2021; 11 May 2022

Representative for the Applicant: Mr J Papalia, Australian Government Solicitor

Representative for the Respondent:
TV, Respondent’s Mother.

Date of hearing:	28 October 2021; 11 May 2022
Representative for the Applicant:	Mr J Papalia, Australian Government Solicitor
Representative for the Respondent:	TV, Respondent’s Mother.