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

This matter concerned an application for a disability support pension (DSP) by the applicant, who resided in Croatia, against the Secretary of the Department of Social Services. The core dispute revolved around whether the applicant met the eligibility requirements for the DSP, particularly in light of the interaction between domestic Australian social security law and an international agreement with the Republic of Croatia. The case was heard by Mr S Evans, a Member.

The legal issues before the court were whether the applicant, an Australian citizen residing in Croatia, met the residence requirements for a DSP, and if not, whether the social security agreement between Australia and Croatia provided an exemption or alternative pathway to eligibility. Specifically, the court had to consider the interplay between section 94(1)(c) of the Social Security Act 1991 (Cth) and Articles 2(1) and 4 of the Croatia Agreement, particularly concerning the requirement to participate in a program of support. The court also needed to determine if the applicant's multiple medical conditions qualified her as "severely disabled" as defined by the Act for the purposes of the agreement.

The court reasoned that the applicant did not meet the general residence requirements for the DSP under the Social Security (Administration) Act 1999 (Cth) and had not been granted portability. However, the Croatia Agreement, given effect by the Social Security (International Agreements) Act 1999 (Cth), exempted the applicant from the residence requirement. The court acknowledged an apparent inconsistency between the domestic requirement to participate in a program of support and the principle of equal treatment under the Croatia Agreement, suggesting that for DSP applications under the agreement, the program of support requirement should be effectively replaced by the definition of "severely disabled" in Article 2(1) of the agreement, which aligns with the definition in subsection 23(4B) of the Act. The court found that the applicant's conditions resulted in a total impairment rating of only 5 points under the Impairment Tables, which did not meet the threshold of 20 or more points required to satisfy section 94(1)(b) of the Act.

Consequently, as the applicant failed to meet the necessary impairment rating, her application for the DSP could not succeed. The decision under review was affirmed.