Laghari and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 347

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 347

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4145

GENERAL ADMINISTRATIVE DIVISION		)
Re		Rehan LAGHARI

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Dr I S Alexander

Date25 May 2011

PlaceSydney

Decision The decision under review is affirmed.

....................sgd.......................

Dr I S Alexander

CATCHWORDS Disability Support Pension (DSP) – Qualification for DSP – “Dependent child of an Australian resident” – “Dependent child” – “Day-to-day care, welfare and development” - Decision under review is affirmed

Social Security Act 1999 subss 94(1) and (2), 5(2) and (7)
Social Security (Administration) Act 1999 Sch 2 cl 4

REASONS FOR DECISION

25 May 2011       Dr I S Alexander

1.      In this application Rehan Laghari seeks review of a Social Security Appeals Tribunal (SSAT) decision dated 31 August 2010 affirming an earlier decision by Centrelink to reject his claim for the Disability Support Pension (DSP). The claim was lodged on 15 June 2010.

2.      Rehan suffers significant intellectual and physical impairment and did not attend the hearing on 5 May 2011. He was represented by his father, Mr Fayyaz Laghari (“Mr Laghari”), who also gave oral evidence.

Background

3.Rehan was born on 5 June 1994 in Pakistan and is presently 17 years of age.

4.He has suffered from physical and intellectual impairment since childhood.

5.      In April 2000 Mr Laghari arrived in Australia with his three other children leaving Rehan in Pakistan under the care of his paternal grandparents.

6.On 17 September 2002 Mr Laghari became an Australian citizen.

7.      In July 2001 Rehan applied for a Child (Migrant) (ClassAH) visa.

8.      In January 2005 the Migration Review Tribunal (MRT) affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant Rehan a visa because he did not meet health requirements.

9.      On 4 July 2007, following a successful appeal to the Federal Magistrates Court, a differently constituted MRT granted Rehan a visa.

10.On 16 August 2007 Rehan arrived in Australia.

Issues

11. Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for qualification for the DSP.

12.Relevantly subs 94(1) states inter alia that:

(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)the person has turned 16; 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 …

13.     Subsection  94(2) provides that:

(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)  the impairment is of itself sufficient to prevent the person from doin any work independently of a program of support within the next 2 years; and

(b)  either:

(i)  the impairment is of itself sufficient to prevent the person from        undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years …

14. Also Clause 4 of Schedule 2 to the Social Security (Administration) Act 1999 provides that an assessment for the DSP must occur within a period of 13 weeks after the day on which the claim is made (the qualification period) which in this case is between 15 June and 14 September 2010.

15. The Secretary concedes that Rehan satisfies subss 94(1)(a),(b),(c) and (d) but not subs 94(1)(e) of the Act.

16. Mr Laghari contends that Rehan does satisfy subs 94(1)(e) particularly subs 94(e)(iii) because he was a “dependent child” when he first satisfied subs 94(1)(c).

17.     There is no dispute that Rehan suffers from an impairment, which prevented him from doing any work within the two years from the date on which he applied for the DSP, before he was an Australian resident.

18. This means that he was not an Australian resident when he first satisfied subs 94(1)(c) and therefore does not satisfy subs 94(1)(e)(i)

19. There is no dispute that Rehan does not satisfy subs 94(1)(e)(ii).

20. Therefore the relevant issue to decide in this case is whether Rehan satisfies subs 94(1)(e)(iii) and in particular whether he was a “dependent child of an Australian resident” for the purposes of the Act.

Evidence

21.     In oral evidence Mr Laghari explained that Rehan’s early childhood was marked by significant delays in developmental milestones but that over time he made satisfactory progress. Unfortunately in 2005 Rehan suffered an acute illness, associated with dehydration and hypernatremia, which led to significant cerebral injury and resulted in increased functional impairment so that Rehan could no longer walk or talk. This level of functional impairment persists to date.

22.     Mr Laghari stated that even though he had migrated to Australia in 2000 he visited Pakistan at least once a year and at all times remained legally and financially responsible for Rehan’s care and welfare. He explained that he assisted his parent’s  financially , paid all Rehan’s medical expenses and paid the wages of a fulltime carer who was employed in 2005 after Rehan was discharged from hospital. 

Consideration

23. Mr Laghari submits that Rehan was born outside Australia and, at the time when he first satisfied subs 94(1)(c) of the Act he was a dependent child of an Australian resident and therefore satisfies subs 94(1)(e)(iii).

24. The Secretary contends that Rehan first satisfied subs 94(1)(c) because of his “Congenital Abnormalities” which meant that he could not have been a dependent child of an Australian resident at the relevant time.

25. In my view the evidence before me supports a conclusion that the acute illness in 2005 was the relevant time when Rehan suffered the impairment that first satisfied subs 94(1)(c).

26.     In 2005 Rehan was 11 years old and his father was an Australian resident but Rehan was living in Pakistan which raises the question whether he was a “dependent child” for the purposes of the Act.

27.     Section 5 of the Act defines “Family relationships”. “Dependent child - under 16”  is defined at subs 5(2) of the Act, the subsection states inter alia that:

(2)  Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if:

(a)   the adult is legally responsible (whether alone or jointly with another person)   for the day‑to‑day care, welfare and development of the young person, and the young person is in the adult’s care; ....

28.     As noted above Mr Laghari contends that although he was living in Australia he was legally and financially responsible for the day-to day care and welfare of his son.

29.     The Secretary contends that in 2005 Rehan was not a “dependent child” within the meaning of the Act because he was living in Pakistan and his “day-to day care, welfare and development” was not the responsibility of his father.

30.     In my view this question is arguable but for present purposes I do not need to decide as subs 5(2) of the Act is subject to subs 5(7) which states inter alia that:

Dependent child—residence requirements

(7)  For the purposes of this Act (other than the provisions dealing with special benefit), a young person is not to be treated as a dependent child of another person (in this subsection called the adult) unless:

(a)  if the adult is an Australian resident:

(i)  the young person is an Australian resident; or

(ii)  the young person is living with the adult; …

31. As Rehan was not an Australian resident in 2005 and not living with his father he was not a “dependent child” for the purposes of the Act and therefore he does not satisfy subs 94(1)(e)(iii) and does not qualify for the DSP.

Decision

32.     For the reasons detailed above, Rehan Laghari did not qualify for the DSP during the assessment period.

33.     The decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander.

Signed:         .........sgd.......................................................................

Casey Comans, Associate

Date of Hearing  5 May 2011

Date of Decision  25 May 2011

Applicant’s Representative                  Mr Fayyaz Laghari (Applicant’s father)

Solicitor for the Respondent                 Ms Biljana Salaji