Kumar and Secretary, Department of Family and Community Services

[2005] AATA 568

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 568

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/704

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUNEEL KUMAR

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr K S Levy, Member

Date15 June 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal and rejects Mr Kumar’s request to be classified as “severely disabled”.

...................[Sgd]......................

K S Levy
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – whether applicant is “severely disabled” – application of International Agreement between New Zealand and Australia to disability support pension – provisions for being “severely disabled” not satisfied – decision under review affirmed.

Social Security Act 1991 ss 23(4B), 94, 1217, 1218AA, 1218C
Social Security (International Agreement) Act 1999 ss 6

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Materek v Secretary, Department of Family and Community Services [2003] FMCA 14

REASONS FOR DECISION

15 June 2005   Dr K S Levy, Member         

Decision Under Review

1.      The decision under review is a decision of the Social Security Appeals Tribunal (SSAT) dated 21 July 2004 which affirmed a decision made by Centrelink on 4 August 2003 to reject Mr Kumar’s application to classify him for the purposes of his disability support pension as being “severely disabled”.

2.      Mr Kumar lives in Australia but travels back to New Zealand for part of each year.  While he attended the hearing of the SSAT, he chose to have the application to this Tribunal heard on the basis of the papers available to it.

Background

3.      Mr Kumar is a New Zealand citizen and is 51 years of age, having been born on 25 August 1953.  He arrived in Australia on 19 June 2002.  He was granted a disability support pension as from 20 June 2002 under the provisions of the Social Security Agreement then in force between Australia and New Zealand (“the 1995 Agreement”).

4. In 2003, the applicant requested that his disability support pension be assessed for portability to New Zealand under section 23(4B) of the Social Security Act 1991.  Had this application been approved, the applicant would have had portability of his disability support pension whilst in New Zealand and could have availed himself of the more generous provisions of the International Agreement which came into force on 1 July 2002 (“the 2002 Agreement”) would have been activated. 

5.      Mr Kumar was in New Zealand for the period 26 September 2003 to 10 March 2004.  He sought a review of the decision of 4 August 2003 and this was reviewed by an authorised review officer (ARO) on 18 November 2003.  The ARO affirmed the previous decision rejecting Mr Kumar’s application to be regarded as “severely disabled”.

6. Mr Kumar then appealed to the Social Security Appeals Tribunal on 15 March 2004. That Tribunal affirmed the previous decision on 21 July 2004. He has now appealed that decision to the Administrative Appeals Tribunal under section 29(1) of the Administrative Appeals Tribunal Act 1975.  That application was lodged with this Tribunal on 5 September 2004, following an extension of time being granted to the applicant for lodgement of the application until 9 September 2004.

Documents

7.      The Tribunal had regard to the documentary evidence prepared (the “T” Documents), encompassing the SSAT decision and all the medical and other documentary evidence available.  The Secretary’s Statement of Facts and Contentions and the International Agreements (the 1995 Agreement and the 2002 Agreement) were attached.  An extract of the Guide to Social Security Law (the Guide) was also attached, which reproduced section 1.1.S.110 - the definition and requirements for being recognised as being “severely disabled”.

8.      A copy of a letter from the applicant dated 3 January 2005 and a letter dated 23 December 2004 from a rheumatologist in New Zealand declining to complete the report of the applicant’s condition was also available.  This was as a result of a request by the Department’s advocate, Ms S Oliver for more recent and up-to-date medical evidence.

Issues

9. The issue for determination in this case is whether Mr Kumar is “severely disabled” under section 23(4B) of the Act or for the purposes of the 2002 Agreement on Social Security between Australia and New Zealand.

Legislation

10.     The relevant legislation in this matter is:

(a)      Social Security (International Agreement) Act 1999

11.     Section 6(1) of that Act provides that the Social Security Agreement between New Zealand and Australia is effective notwithstanding anything to the contrary in the social security law.  Schedule 3 – New Zealand (the 1995 Agreement) and a revised Schedule 3 – New Zealand (the 2002 Agreement) are also relevant in the determination of this matter.  Paragraph (i) of Article 2 in both the 1995 Agreement and the 2002 Agreement identified “disability support pension” as being covered by the International Agreement between New Zealand and Australia.

12.     This is further amplified in paragraph 2 of Article 2 of the 2002 Agreement which states:

“2. For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid’s benefit shall be limited to cases where:

(a)       the person is severely disabled;

(b)the person was a resident of one of the parties at the date of severe disablement; and

(c)the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.”

13.     The Guide to the Social Security Law (1.1.S.110) deals with the definition and requirements for being recognised as “severely disabled”.  The definition states:

“For the purposes of DSP, a customer is severely disabled if the customer:

§  has a physical, psychiatric or intellectual impairment, or 2 or all of these impairments, which make the customer:

o   totally unable to work for at least the next 2 years, and

o   unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program, or

§  is permanently blind.”

14.     In application of the meaning of the term “severely disabled” the Guide states that:

“A customer is accepted as being severely disabled if their impairment prevents them from:

§  doing any work for 8 hours a week or more for the next 2 years, and

§  benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours a week.”

(b) Social Security Act 1991

15. Section 23(4B) provides as follows:

“23.(4B)  For the purposes of this Act, a person is severely disabled if:

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

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

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

(b)       the person is permanently blind.”

16.     Section 94 - Qualification for disability support pension.  The applicant has already satisfied this section and is in receipt of disability support pension.

17.     Section 1218AA provides:

“(1)     The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

(a)       the person is severely disabled (see subsection 23(4B)); and

(b)       the person is receiving disability support pension; and

(c)       the person is terminally ill; and

(d)       the person’s absence from Australia is or will be permanent; and

(e)       the purpose of the person’s absence is:

(i)        to be with or near a family member of the person…; or

(ii)       to return to the person’s country of origin.”

18.     Section 1218C provides:

“1218C.(1)  The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

(a)       a serious accident involving the person or a family member of the person;

(b)       a serious illness of the person or a family member of the person;

(c)       the hospitalisation of the person or a family member of the person;

(d)       the death of a family member of the person;

(e)the person’s involvement in custody proceedings in the country in which the person is located;

(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

(g)robbery or serious crime committed against the person or a family member of the person;

(h)       a natural disaster in the country in which the person is located;

(i)        political or social unrest in the country in which the person is located;

(j)        industrial action in the country in which the person is located;

(k)       a war in the country in which the person is located.

1218C.(2)  The Secretary must not extend the person’s portability period under subsection (1) unless:

(a)       the event occurred or began during the period of absence; and

(b)if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.

1218C.(3)  If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.”

Facts

19.     The record shows that Mr Kumar is not contesting the non-payment of disability support pension when he was in New Zealand last year but rather, is challenging the decision not to classify him as a “severely disabled” person. 

20.     Mr Kumar has no friends or relatives in Australia but endeavours to go back to New Zealand during the summer months to see his mother and family.  He stays in Australia during the winter months of New Zealand as the climate in Australia is reportedly better for his condition.  The SSAT accepted that his belief was well-founded. 

21.     The applicant suffers pain, arthritis in his spine, ankles, knees, shoulders and wrists.   He was initially living in his car for six months, but that aggravated his disability.  He owns a manual car which is more difficult to drive with his condition.  However, it appears he currently lives in a ground floor unit in the city which he shares with the landlady.

22.     He gave evidence to the SSAT that he does his own cooking, shops once a week but has difficulty carrying anything such as groceries.  He has difficulties showering and dressing as well as making his own bed. 

23.     He stated that he can walk up to 2 kilometres a day at his own pace, although he walks with a limp.  He spends much of his day reading (including a couple of hours each day in the local library) and then spends some time at the RSL. 

24.     He told the SSAT that he usually goes to bed between 4 pm and 5 pm and then reads for a period of time after that.  He goes to sleep between 9 pm and 10 pm but occasionally awakes with severe pain. 

25.     Prior to his present condition, Mr Kumar attended school in Fiji and completed a school certificate.  He subsequently studied accounting and business studies but did not complete his qualifications.  However, he later had experience as an accounts clerk for 5 or 6 years;  spent time in the military forces;  and had subsequent experience as a senior accounts clerk for a supermarket.  He moved to New Zealand in 1988 and worked as a quality controller until 1994.  At that time he ceased work due to ill health.  He was originally diagnosed with arthritis in 1992. 

26.     At the SSAT hearing, the Tribunal asked what would prevent Mr Kumar from undertaking clerical work of up to 8 hours per week.  He stated that his concentration would be affected because of pain.

Medical Evidence

27.     A report of Dr P Kamenyitzky from Health Services Australia dated 29 July 2002 indicated Mr Kumar had severe rheumatoid arthritis.  This caused him to walk with a limp and had marked swelling in his hands and feet resulting in significant disability in both his arms and legs.  Dr Kamenyitzky indicated that Mr Kumar would have difficulty with problems of dexterity and grip strength, and also would have some impairment with limb function.  However, he stated he would be capable of 8 hours of work per week of a light, part-time nature. 

28.     Dr Kamenyitzky also stated in his report that while Mr Kumar would not be able to return to his usual or former work or study load for more than 2 years, he stated that he would be likely to be able to work more than 20 hours per week immediately, although he would need a supported environment.  He thought also that he would be able to handle at least 15 hours of study immediately.  He added that a supported employment program may benefit the applicant.  He further completed the report indicating that the applicant could benefit from educational training, vocational training, and on-the-job training.  He thought 2 years or more would not be unreasonable to make available for such training for rehabilitation purposes.  He also highlighted that a vocational assessment might be helpful.

29.     In terms of intellectual function, Dr Kamenyitzky stated that the applicant could be likely to be absent or late for work on 4 days per month but could follow instructions and communicate fluently without any impairment.  He also stated that Mr Kumar’s condition should not affect his ability to interact with others or behave appropriately.  His main areas of concern indicated that the applicant’s mobility would be constrained in some situations, particularly if he were required to move around at work.  He pointed out that the applicant would be unable to lift, carry or move objects.

30.     A further report was provided by rheumatologist, Dr Jane Munro dated 31 January 2003.   She thought he had experienced an increase in symptoms but had also appeared to be depressed and had “a number of psychosocial stressors”.  It is not clear what those stressors were.  She noted that the effects of his arthritis were marked pain and morning stiffness, sleep disruption, limitation of basic activities of daily living and reduction in range of movement in the hands and legs.

31.     A report also was provided by the treating doctor, Dr J Edwards, dated 15 July 2003.  Dr Edwards reported Mr Kumar suffers pain and stiffness in peripheral joints and experienced reduced mobility.  He also highlighted mobility problems and in particular, he stated that the applicant would be “unable to stand, sit, move around without difficulty”.  As to the effect of the condition in 2 years from that time, he indicated that the applicant’s ability to function would be “uncertain”.

32.     A further report by the treating rheumatologist, Dr P Kubler, was provided dated 1 September 2003.  Dr Kubler stated that Mr Kumar had a severely debilitating rheumatoid arthritis and a marked loss of daily living function and lethargy.  He stated that the arthritis affected the applicant’s hands, feet, wrists, knees and left shoulder.  Dr Kubler also felt there was a severe limitation in his capacity for self-care, dressing, toileting and eating.  The SSAT placed less weight on this report as Mr Kumar’s own evidence was that he was quite ill at that time.  He consulted with Dr Kubler and he had since improved.

33.     Mr Kumar also was requested to undertake a work capacity assessment with a psychologist.  This appointment was on 10 September 2003.  The report on that appointment indicated that Mr Kumar arrived on time and it was explained to him that Centrelink needed to determine the areas in which he found difficulty.  The report revealed that Mr Kumar would not answer questions about most issues and responded that the questions were hurting his feelings.  He thought he had already told many doctors about all of these issues and that should be enough.

34.     He did disclose to the psychologist that he had been a soldier for 5 years and a quality controller for 8 years in New Zealand.  He ceased work 10 years ago due to ill health.  He mentioned that he was living in his car at that time and that he spent his day either in the library or at the RSL.  He further mentioned that he merely wanted to return to New Zealand and he would like the process regarding his application to be dealt with speedily.  At the conclusion of the interview, the psychologist reported that Mr Kumar walked approximately 100 metres to his car.

Findings of Fact

35.     The Tribunal found on the evidence before it –

(a)that Mr Kumar has a permanent medical condition of severe rheumatoid arthritis;

(b)that the arthritis involved information of the wrist, hands, feet, knees and left shoulder;

(c)that he suffers pain and stiffness in all peripheral joints and suffers consequential loss of mobility;

(d)that he has limitation in his capacity for mobility;

(e)that he has sufficient capacity for movement over short distance and for driving a car; and

(f) that he reads several hours a day at a library and in the evening.  Therefore, he has some capacity for concentration and light work.  He has by previous study and training some knowledge and experience in accounting and clerical functions.

Consideration

36.     The Tribunal considered all of the material before it about whether Mr Kumar was “severely disabled”.

37.     The legislation does not define “severely disabled” but the Guide assists in making sense of the scope of that term.  That document is, of course, a policy of the Department rather than being embodied in the legislation per se.  The respondent argued that such policy should be followed unless there are cogent reasons for not doing so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645). There is also some recent authority for adopting that policy as part of the considerations in interpreting that section (see Materek v Secretary, Department of Family and Community Services [2003] FMCA 14).

38.     It is clear from medical reports that the applicant has rheumatoid arthritis and suffers some pain and mobility problems.  Indeed, even some of the daily functions of life are difficult for him at times.  These have been outlined by a number of medical practitioners.  Nevertheless, Dr Kamenyitzky, whose evidence seems credible and balanced, indicated that the applicant was capable of undertaking 8 hours of work per week on a part-time basis where it was only light work.  His assessment was also that he should have no difficulty with understanding instructions, communicating with others in the workplace or in interacting and behaving properly.  He tended to limit his cautions to issues of physical mobility.  However, he did also suggest that a rehabilitation program would be helpful.

39.     In addition, the latest available evidence from his treating doctor in New Zealand, Dr M Butler, declined to complete the medical assessment for him saying that an occupational physician needs to complete the form, and not a rheumatologist.

40.     Dr Kamenyitzky’s report also seems consistent with that of the psychologist.  The comments and observations by the psychologist are shown under medical evidence above.  The weighing of evidence has not been made any easier by the fact that the evaluation of this application has been required to be made on the papers and, as a result, none of the witnesses were available to provide oral evidence or, therefore, to be cross-examined.  Nevertheless, it is apparent that the applicant has a significant disability and is likely to remain so indefinitely.  However, the evidence shows that on the balance of probabilities, he has sufficient mobility to get around and to be able to work at least 8 hours per week.  No further evidence was presented that since the last assessment, his condition has deteriorated or that he could not now work 8 hours per week. 

41.     Indeed, the Tribunal has some concern about the time since the last medical assessment, which are now between 18 months and 2 years old.  The Tribunal endeavour to ascertain whether the applicant might wish to have more current medical evidence available.  Mr Kumar advised the Tribunal’s staff that he did not think a Telephone Directions Hearing was necessary and that he would not be available for such a Hearing.  He stated that he had already addressed the issue of getting a more recent medical report.  The latest reference to that is contained in paragraph 39 above.

42. Therefore, the applicant is not “severely disabled” in a legal sense under section 23(4B) of the Social Security Act 1991 and the Social Security (International Agreements) Act 1999, based on current expert evidence. 

43. Also of relevance to the applicant’s claims is the degree of support that is available to him whilst overseas. Section 1217 of the Social Security Act 1991 provides that a person may receive a disability support pension for an indefinite period while overseas if they are classified as “severely disabled” when they depart Australia.  If Mr Kumar qualifies for a disability support pension under section 94 of the Act then his pension would be payable for 13 weeks during any absence from Australia.  However, the respondent argued Mr Kumar does not meet the residency requirements in section 94(1)(e) of the Act.  That submission seems to be substantiated.

44.     The respondent further submitted that the Secretary has two other provisions which allow some discretion to extend the portability of disability support pension in an appropriate case.  In section 1218AA of the Act the Secretary can permit the portability of that pension for an unlimited period if certain qualifying conditions are met.  However, having considered the provisions of that section, it would seem that the Secretary cannot exercise his discretion in this case as section 1218AA is not satisfied because subsection (1)(a) is not met (as he is not severely disabled), subsection 1(c) is not satisfied, as there is no evidence that the applicant is terminally ill; and subsection 1(d) is not satisfied, as the applicant does not intend to depart Australia permanently.

45.     The other provision where the Secretary has some discretion is section 1218C of the Act.  That section also provides a basis for the Secretary to exercise his discretion.  However, the Secretary contends that none of the circumstances listed in that section are presently satisfied.  The Tribunal agrees with that submission.

46.     Therefore, the Tribunal is satisfied that the applicant does not satisfy the legal provisions for being “severely disabled”.  Consequently, he does not qualify for the more generous portability provisions or even unlimited portability provisions of the disability support pension.

47.     The Tribunal, for the reasons outlined above, affirms the decision of the Social Security Appeals Tribunal and rejects Mr Kumar’s request to be classified as “severely disabled”.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member

Signed:         Jenny Tran

Associate

Hearing on the papers
Date of Decision  15 June 2005
The applicant represented himself
For the Respondent                  Ms S Oliver, Departmental Advocate