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

[2017] AATA 536

Kouriefs and Secretary, Department of Social Services (Social services second review) [2017] AATA 536 (26 April 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3241

Re:Constantia Kouriefs  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:26 April 2017    

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – Impairment Tables – whether conditions fully diagnosed, treated and stabilised – International Agreement - residency – severe disability - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (International Agreements) Act 1999 (Cth), sch 11

Social Security (Administration) Act 1999 (Cth), s 42, sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

26 April 2017

INTRODUCTION

1. Mrs Kouriefs seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 25 May 2016. The SSCSD affirmed a decision of an Authorised Review officer (“ARO”) on 27 February 2016, refusing Mrs Kouriefs’ claim for the disability support pension (“DSP”) which was lodged on 18 February 2015.

2. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) provides that to qualify for payment, a person must satisfy residency requirements, have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For Mrs Kouriefs to qualify for the DSP, she had to satisfy these criteria on 18 February 2015, when she applied for the DSP, or within the following 13 weeks, that is, by 20 May 2015 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

   BACKGROUND

4. Mrs Kouriefs was born in Cyprus and moved to Australia on 4 January 1981. Australia was a country of residence until 9 May 1999.

5. On 9 May 1999, Mrs Kouriefs moved back to Cyprus which again became a country of residence.

6. On 20 November 2014, Mrs Kouriefs returned to Australia.

7. On 18 February 2015, Mrs Kouriefs lodged a claim for the DSP and on 24 February 2015, she moved back to Cyprus where she currently resides.

   RELEVANT LEGISLATIVE PROVISIONS AND POLICY

   Residency Requirement

8. Section 29 of the Administration Act states that a claim for Social Security payment (including DSP) can only be made by someone who is an Australian resident and is in Australia. Section 29 further states that a claim made by someone who is not an Australian resident or is not in Australia is taken not to have been made.

9. Section 94(1) of the Act requires the following:

   (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.

10. Section 7 of the Act defines the following terms:

    An Australian resident is a person who:

    (a)resides in Australia; and

    (b)is one of the following:

    (i)     an Australian citizen;

    (ii)    the holder of a permanent visa;

    (iii)    a special category visa holder who is a protected SCV holder.

11. In deciding whether or not a person is residing in Australia, regard must be had to subsection 7(3) which states that:

    (a)the nature of the accommodation used by the person in Australia; and

    (b)the nature and extent of the family relationships the person has in Australia; and

    (c)the nature and extent of the person's employment, business or financial ties with Australia; and

    (d)the nature and extent of the person’s assets located in Australia; and

    (e)the frequency and duration of the person’s travel outside Australia; and

    (f)any other matter relevant to determining whether the person intends to remain permanently in Australia.

12. Section 7(5) and (6) provides:

    (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 least one of those periods is 5 years or more; and

    (ii)    the aggregate of those periods exceeds 10 years.

    (6)A person has a qualifying residence exemption for a social security pension (other than carer payment) or a social security benefit (other than youth allowance, austudy payment, newstart allowance, sickness allowance, special benefit or partner allowance) if, and only if, the person:

    (a)resides in Australia; and

    (b)is either:

    (i)     a refugee; or

    (ii)    a former refugee.

    Impairment Tables

13. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

14. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

15. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

16. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

17. Reasonable treatment is defined in subsection 6(7) as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

18. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each Table and a rating cannot be assigned between consecutive impairment ratings. Significantly, s 11(1)(c) provides:

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. (emphasis added)

    International Agreement

19. Schedule 11 of the Social Security (International Agreements) Act 1999 (Cth) (“International Act”) contains a social security agreement between Australia and Cyprus (“the Agreement”).

20. Section 6 of the International Act states that:

    (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.

21. Article 1(2) of the Agreement provides that any term not defined in Article 1 shall have, unless the context otherwise requires,  the meaning assigned to it in the legislation of either Party or, in the event of conflict of meaning, by whichever of those laws is the more applicable to the circumstances of that person.

22. Article 2, section 1(a)(ii) of the Agreement states that it applies to the DSP for the severely disabled. The term, severely disabled, is not defined in Article 1 of the Agreement. The definition of severely disabled should therefore be assigned the meaning under subsection 23(4B) of the Act, which provides:

    For the purposes of this Act, a person is severely disabled if:

    (a)a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

    (i)     to work for at least the next 2 years; and

    (ii)    unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

    (b)the person is permanently blind.

23. Article 3 of the Agreement states that it applies to any person who has been an Australian resident. Article 6, section 1 states that Australia will treat someone who is a resident in Cyprus as being a resident of Australia and present in Australia so that the person can lodge a claim for an Australian pension.

24. The Secretary contends that Mrs Kouriefs was not a resident of Australia for the purposes of section 94(1)(ea) of the Act at the time she lodged her application for the DSP on 18 February 2015. I also note that she is not an Australian citizen and does not hold a permanent special category Visa and therefore she cannot be considered an Australian resident under the definition in section 7 of the Act.

25. However, the Agreement deems that Mrs Kouriefs, as an individual of Cyprus, is a resident of Australia, and present in Australia, for the purposes of meeting the residence requirements in subsections 94(e) and 94(1)(ea) of the Act. She therefore meets the residency requirements for eligibility for the DSP by virtue of the Agreement.

    Impairments

26. The Secretary accepts that Mrs Kouriefs suffered from a number of conditions including a heart condition and a mental health condition during the relevant period. She therefore satisfies section 94(1)(a) of the Act.

27. In regards to the heart condition, the Secretary accepts that Mrs Kouriefs heart condition, namely a mitral valve stenosis, was fully diagnosed during the relevant period, but contends that the condition was not fully treated and stabilised.

28. There are numerous medical reports from both Australian and Cyprian medical practitioners before me outlining Mrs Kouriefs’ extensive medical history in regards to her condition. It is plain from the evidence that her various doctors and cardiologists expected her to have surgery to repair the valve in her heart. This is supported particularly by the reports of Dr Barberis, cardiologist, dated 19 December 2014, 3 September 2015, 28 November 2016 and 3 January 2017.

29. In light of this medical evidence, I am not satisfied that Mrs Kouriefs’ heart condition was fully treated and fully stabilised during the relevant period. It follows that it cannot be given an impairment rating under the Impairment Tables.

30. In regards to Mrs Kouriefs’ mental health condition, the Secretary contends that it was not fully diagnosed during the relevant period. I agree for the following reasons.

31. The Introduction to Table 5 of the Impairment Tables provides (inter alia):

    The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). (Emphasis added)

32. Although there is some reference to a psychiatrist in Mrs Kouriefs’ medical records, I do not have before me a medical report from a psychiatrist or a clinical psychologist diagnosing Mrs Kouriefs’ mental health condition. I can therefore not be satisfied that her mental health condition was fully diagnosed during the relevant period. It follows that no impairment rating may be given for this condition under the Impairment Tables.

    Is the Applicant “Severely Disabled” for the Purposes of the Agreement?

33. As already stated, the Agreement provides that Mrs Kouriefs will only be entitled to the DSP if she is “severely disabled” (as defined above).

34. The Applicant’s Employment Services Assessment Report dated 13 January 2015, noted that Mrs Kouriefs had a baseline work capacity of 15 to 22 hours per week, rising to 23 to 29 hours per week with intervention. The report concluded that Mrs Kouriefs could undertake “light less skilled” work.

35. In a medical decision dated 21 December 2015, Mrs Kouriefs’ work capacity was assessed at that time as 30+ hours per week based on the medical evidence provided.

36. In light of this evidence I’m satisfied that Mrs Kouriefs is able to work for some period of time during the week, at a minimum, 15 hours per week. Therefore I’m not satisfied that she is “severely disabled” for the purposes of the Act and the Agreement and is not entitled to the DSP.

    DECISION

37. The decision under review is affirmed.

I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated 26 April 2017

Date of hearing	18 January 2017
Advocate for the Applicant	Ms E Kouriefs
Solicitors for the Respondent	Mr A Kennedy, Clayton Utz