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

[2015] AATA 848

Kokioussis and Secretary, Department of Social Services (Social services second review) [2015] AATA 848 (5 November 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2139
Re	Katy Kokioussis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	5 November 2015
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS – disability support pension – unlimited portability – continuing inability to work – whether continuing inability to work arose while applicant resident in Australia – Portability Rate calculator – decision under review affirmed

Legislation

Social Security Act 1991, as amended, taking into account amendments up to Act No 78 of 1994 ss 1213A, 1220A, 1220B, 1221

Tribunals Amalgamation Act 2015

Administrative Appeals Tribunal Act 1975 s 37

Cases

Re Allen Christian and Secretary, Department of Social Security [1993] AATA 54

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. This decision concerns the rate at which Katy Kokioussis is entitled to be paid disability support pension (DSP).

2. Ms Kokioussis was born in Australia in 1955.  She lived in Australia until 1978 when she and her children moved to Greece with her husband who was terminally ill.  Her husband died a short time later.  Ms Kokioussis returned to Australia with her children in September 1979.  In September 1980 they returned to Greece.   

3. In February 1994, Ms Kokioussis returned to Australia.  She remained in Australia until March 1999 when she returned to Greece.  Other than returning to Australia briefly in March 2000 and September 2010, she has lived in Greece since.

4. Throughout 1994, Ms Kokioussis lodged several applications for DSP.  Her first applications were rejected on the ground of insufficient medical information.  On 30 September 1994, she was granted DSP on the basis of her severe disability due to chronic lumbar pain, chronic neck pain and spondylosis, and chronic depression.

   Qualification for DSP

5. The provisions of the Social Security Act 1991 (the Act) concerning payment of DSP have undergone extensive revision over the years but the criteria for qualification have remained broadly the same. A person must have a qualifying impairment rating under the Impairment Tables in the Act and a “continuing inability to work” as defined in the Act. As well, a person:

   (i)must be an Australian resident when the “continuing inability to work” occurred; or

   (ii)have 10 years qualifying Australian residency.

6. When Ms Kokioussis applied for DSP in 1994, she satisfied the impairment rating and continuing inability to work requirements, and she had 10 years qualifying Australian residency.  Centrelink therefore did not have to consider when her continuing inability to work arose.

   Portability of payments

7. At the time Ms Kokioussis was granted DSP, payment to a person with a severe disability was not affected by any absence from Australia (s 1213A of the Act as it then was).  However, after 12 months’ absence, unless one of several exceptions applied, DSP was (and still is) payable at a reduced “portability rate”.  The “portability rate” is calculated according to a person’s “Australian working life residence” (ss 1220A and s 1221 of the Act as it then was).

8. When Ms Kokioussis left Australia on 6 March 1999, the exceptions to the reduced “portability rate” after 12 months absence were:

   (i)if the person was resident in Australia on 8 May 1985; or

   (ii)if she was granted the DSP before 1 July 1986; or

   (iii)if her continuing inability to work arose in Australia: s 1220B of the Act (as it then was). 

   What happened to Ms Kokioussis’ rate of payment? 

9. On 9 March 1999, Centrelink reduced Ms Kokioussis’ rate of payment by the amount of the Pharmaceutical Allowance, which is not payable to a person who is overseas, but otherwise continued to pay her at the maximum rate of DSP.  

10. On 6 March 2000, when Ms Kokioussis had been absent from Australia for 12 months, the question would normally have arisen whether she should continue to be paid at the full rate or whether she should be paid at the reduced “portability rate”.   As she was not resident in Australia on 8 May 1985, and as she was not granted DSP before 12 July 1986, then unless her continuing inability to work arose in Australia, she should have been paid at the “portability rate” from 6 March 2000.

11. For reasons which are not clear, Centrelink did not review Ms Kokioussis’ rate of payment in March 2000 and continued to pay her at the full rate. 

12. When Ms Kokioussis returned to Australia in September 2010, Centrelink investigated her records to determine where her continuing inability to work arose.  In October 2010, it was determined that her continuing inability to work arose while she was in Greece and not in Australia.  As a result, Centrelink determined that she should have been paid at the “portability rate” from 6 March 2000.  However, for reasons which are not clear, Centrelink continued to pay Ms Kokioussis at the full rate.

13. It was not until July 2014, in the process of notifying Ms Kokioussis and others of changes to the rules concerning “Australian Working Life Residence”, that Centrelink found she had been overpaid from March 2000 to June 2014.  As of 1 July 2014, Centrelink has paid Ms Kokioussis at the reduced rate.  Centrelink waived recovery of the overpayment from 2000 to June 2014 on the basis that it was due solely to its administrative error.  

14. On 31 March 2015, the Social Security Appeals Tribunal (SSAT) decided that the decision to pay Ms Kokioussis DSP at the reduced portability rate from July 2014 was correct.  Ms Kokioussis seeks review of the SSAT’s decision.

    Amalgamation of the tribunals

15. On 1 July 2015, the SSAT amalgamated with the Administrative Appeals Tribunal (AAT) and became the Social Services and Child Support Division of the AAT.  Under the transitional provisions in the Tribunals Amalgamation Act 2015, Ms Kokioussis’ application to the SSAT is taken to be an application for “AAT first review” and her application for review of that decision one for “AAT second review”.

    How is the portability rate calculated?

16. The “portability rate” is calculated according to the Pension Portability Rate Calculator in s 1221 of the Act.  A person’s “Australian working life residence”, which is the period she was in Australia from the age of 16 until reaching age pension age, is calculated to give a “residence factor”.  The “notional domestic rate”, which is the full rate of pension, is multiplied by the “residence factor” to give the “portability rate”.    

17. It is not in dispute that Ms Kokioussis has an Australian working life residence of 157 months.  If she is subject to the portability rate, that is, if her continuing inability to work did not arise in Australia, then her DSP should have been paid at the portability rate since 6 March 2000.

    When did Ms Kokioussis’ continuing inability to work arise?

18. Ms Kokioussis says her continuing inability to work arose while she was resident in Australia.  The respondent disagrees and says it arose while she was in Greece. 

19. Ms Kokioussis says she has suffered from back pain for many years, well before she went to Greece with her children and husband in 1978.  She told the SSAT that, prior to her departure for Greece in 1978, she worked in various jobs in Australia which involved heavy lifting, and caring for her husband while he was terminally ill involved lifting as well.  She said these activities “had an impact on [her] condition deteriorating throughout the years”.  In her written submissions to the SSAT, Ms Kokioussis said:

    The effects of these problems may have started appearing around 1988 as stated in your letter however the cause of the problem has stemmed from before 1988 and is almost certainly relating (sic) to the nature of my employment whilst in Australia…

20. Following the hearing in this Tribunal, Ms Kokioussis provided written submissions in response to further medical evidence filed by the respondent which is discussed below.  She disputes the medical record putting the date of onset of her back condition at 1993, and writes:

    In 1993 is the time when I knew that I could no longer handle the pain and the discomfort I was enduring and it was the year I decided that I had to do something about it…

21. Ms Kokioussis says she was in contact with Centrelink by telephone from Greece in the early 1980s about obtaining financial assistance for her medical expenses whilst residing overseas.  She says that, after 20 years, she is unable to verify her claims because much of her medical information and government records have been destroyed.

    Ms Kokioussis’ claims for DSP

22. When she first applied for DSP in February 1994, Ms Kokioussis completed a claim form in which she stated she had had three minor strokes, a family history of high cholesterol, four operations on her left hand to remove ganglions, and vertigo.  She stated that lifting heavy objects caused strain on the back of her neck; she had weakness in her left and right wrists, and she was unable to handle stress and pressure in everyday life.  She stated she was unable to complete household duties throughout the day without constant resting periods.

23. In her second claim in July 1994, Ms Kokioussis stated she had problems with both her knees and chronic neck and back problems “for about 6 years”.  She stated she was unable to lift objects because her knees would not support the weight and her spine ached and she suffered from headaches when lifting or straining; she could not bend to do housework or hang out clothing, she got bad pains in both legs and her back and could not carry anything heavy.

    Medical reports

24. In a medical report dated 29 July 1994 in support of, Ms Kokioussis’ claim for DSP, her general practitioner, Dr George Kerry, stated that she had chronic back pain, chronic neck pain, bilateral meniscal tears of knees and severe anxiety and depressive state.  She had a long-term history of low back and neck pain and stiffness which often interfered with her everyday household duties and she “needs to take medication, or seek complete rest, for pain relief”.  She had “bilateral knee pain, and ‘locking’” which had led her to attend the hospital casualty department many times, and she was awaiting orthopaedic surgery.  Dr Kerry referred to x-rays showing “degenerative bone and disc disease throughout the cervical and lumbar spines”.  He thought all her conditions were likely to last at least another two years.  She was “unable to lift any weights or do even light duties which would involve any repetitive use of her back, neck and/or knees”; she could not sit or stand any more than 15 to 20 minutes before her knees start aching, and had to sit and stand as required; she was totally unfit for light duties, even sedentary work, let alone any manual labouring type jobs.  “She often gets very tearful and depressed because she gets frustrated re her ongoing musculoskeletal problems”.

25. Included in the documents provided by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) is a file note of the review of Ms Kokioussis’ DSP in October 2010 which lists a number of medical reports taken into consideration as part of the review and which were not included in the T-documents. The hearing on 15 September 2015 was adjourned for the respondent to advise if it had in its possession any of the medical reports referred to in the file note and if so, provide copies to the Tribunal and to provide any further medical reports not provided in the T-documents.

26. On 6 October 2015, the respondent filed supplementary T-documents which included all of the medical reports referred to in the file note.  The summary in the file note accurately reflects what is written in the reports.  The reports refer to Ms Kokioussis’ left knee pain, degenerative spine condition, chronic neck and back pain and her psychological condition.  There is nothing in these reports that positively puts the date of Ms Kokioussis’ continuing inability to work back to before 1979.

27. The supplementary T-documents also contain a treating doctor’s report prepared by Dr Anthony Teh, who was Ms Kokioussis’ doctor from October 1995, and reports of scans taken of her lumbar spine, pelvis and both hips and both knees in August 1995 and her lumbosacral spine in January 1997.  Dr Teh listed depression, bilateral meniscal damage and upper back pain as Ms Kokioussis’ diagnosed conditions.  He provides very brief details of the clinical features of her conditions and answered “not known” to questions concerning her ability to undertake employment.  He put the date of onset for her knee and back conditions as 1993. 

    Consideration

28. The respondent does not dispute, and I am satisfied, that Ms Kokioussis has long standing back neck and knee problems which pre-dated her claim for DSP.

29. The question is at what point her conditions reached a level of severity that meant she had a continuing inability to work for the purposes of DSP.

30. Continuing inability to work has a particular meaning for the purpose of DSP.  It means that a person’s impairment is of itself sufficient to prevent the person from doing his or her usual work and work for which he or she is currently skilled for at least two years; and either that the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next two years, or the person’s impairment does not prevent him or her from undertaking educational or vocational training but such training is not likely to equip the person, within the next two years, to do work for which the person is currently unskilled.

31. At the time that Ms Kokioussis was granted DSP, work meant work for at least 30 hours each week.

32. In Re Allen Christian and Secretary, Department of Social Security [1993] AATA 54, the Tribunal had to consider whether Mr Christian’s inability to work arose while he was living in the United Kingdom or in Australia. Unlike Ms Kokioussis’ case, this question had to be decided at the time he applied for DSP because he did not satisfy the 10 years residency requirement. Deputy President Johnston stated at paragraph 12:

    The Tribunal therefore adopts the view that the relevant test, in the case of someone who has spent a period resident outside Australia, is whether the impairment was such that the person would have been prevented from engaging in the person’s usual kind of work for the requisite hours had that person been resident in Australia, for a period of at least two years following the point of time at which the inability to work reached that degree of incapacity.

33. I must determine when Ms Kokioussis’ back and neck conditions reached the degree of incapacity which caused her to be unable to work for more than 30 hours per week. 

34. A difficulty with this case is that there is very limited medical evidence available after this length of time.

35. The medical records concerning Ms Kokioussis’ incapacity for work are limited and of what there is the records are vague and not consistent.  In summary, the information before Tribunal comprises:

    -the statement in the claim form dated July 1994 in which Ms Kokioussis claims to have had back and neck problems “for about 6 years”;

    -the report of Dr Teh putting the date of onset for the back condition at 1993; and

    -Ms Kokioussis’ own statements that her conditions started while she was in Australia but, while in Greece, they deteriorated to the point she could no longer handle the pain and she had to return to Australia.

36. There is nothing in the documents that positively puts Ms Kokioussis’ continuing inability to work back to before 1979, and what limited information there is supports a determination that it arose in the period 1980 to 1994, when she resided in Greece.

37. I accept Ms Kokioussis has had difficulties obtaining medical reports to support her claim.  It is unfortunate that, after 20 years, she finds herself in this position.  However, I can only deal with the information that has been provided.  I am not satisfied, on the basis of that information, that her continuing inability to work arose while she was in Australia.

38. For these reasons I affirm the decision under review.

39.     I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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

Dated 5 November 2015

Date(s) of hearing		15 September 2015
Representatives for the Applicant		Self represented
Representatives for the Respondent	Mr George Lozynsky, Government Lawyer