Mahir Girgs and Secretary, Department of Social Services

Case [2014] AATA 263

[2014] AATA 263

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/5861

Re

Mahir Girgs

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal Professor T Sourdin, Member
Date 2 May 2014
Place Sydney

The decision under review is set aside and in substitution the Tribunal decides that the Applicant qualified for payment of disability support pension at the time of application.

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

Professor T Sourdin, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – time at which continuing inability to work commenced – decision set aside

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act1999

CASES

Re Hanna and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 697

Re Krivoshev and Secretary, Department of Social Services [2014] AATA 132

REASONS FOR DECISION

Professor T Sourdin, Member

2 May 2014

INTRODUCTION

  1. The matter to be determined is whether the Applicant, Mahir Girgs, is qualified for disability support pension (DSP).

    PRIOR DECISIONS

  2. The Applicant made a claim for DSP on 2 March 2011. Centrelink rejected the Applicant’s claim for DSP on 13 April 2011 on the basis that Mr Girgs did not meet the residency requirements. An authorised review officer affirmed the Centrelink decision on 18 September 2012. An application for review of the matter was made to the SSAT and on 23 November 2012 the decision under the review was affirmed. The SSAT decision is less than two pages in length and the decision was based on Mr Girgs not being residentially qualified for the disability pension because he had not been resident in Australia for the required residency period of ten years (at the time that his application was made on 2 March 2011).

  3. The various decisions made and referred to above were focussed on whether Mr Girgs met the 10 year Australian residency requirement or whether his disability arose at an earlier time whilst he was resident in Australia (in the late 1990s). In the SSAT decision, there was no consideration of whether Mr Girgs’ continuing inability to work (CITW) arose after he arrived back in Australia on 2 November 2010 (although the decision contained the acknowledgement that if a person’s CITW occurred at the time the claimant was resident in Australia the person was not required to meet the 10 year residency requirement). This focus is probably due to the fact that Mr Girgs speaks little English, was either self represented or was assisted by Reverend Father Tadros El-Bakhoumi (who acted as his friend in the proceedings) and because he may not have appreciated that this later period was important to consider in the context of the legislation relating to DSP eligibility. At the hearing at this Tribunal, Mr Girgs was represented, and much of the hearing was focussed on this later period from 2 November 2010.

    THE ISSUE

  4. The issue that the Tribunal is required to determine was whether the Applicant was a resident at the time when his CITW arose.

    THE LEGISLATION

  5. The legislation that was considered…

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Mahir Girgs and Secretary, Department of Social Services [2014] AATA 263
Case
[2014] AATA 263
Decision Date

CaseChat Overview and Summary

The case involves Mahir Girgs, who sought a disability support pension (DSP) from the Australian government. Girgs' claim was initially rejected by Centrelink and later affirmed by the Social Security Appeals Tribunal (SSAT). The central issue before the Administrative Appeals Tribunal (AAT) was whether Girgs qualified for DSP by being a resident at the time his continuing inability to work (CITW) arose. The legislation under consideration required that Girgs meet certain conditions, including a 10-year qualifying Australian residency requirement, unless his CITW arose while he was a resident.

The AAT had to determine whether Girgs' CITW occurred after he returned to Australia on 2 November 2010, which would exempt him from the 10-year residency requirement. The evidence presented indicated that Girgs had health issues from the late 1990s, but these did not prevent him from working until he returned to Australia. Between 2002 and 2010, Girgs worked part-time and cared for his mother until her death. Upon his return to Australia, Girgs was working "on trial" with uncertain remuneration. The medical evidence and job capacity assessment suggested that Girgs had some incapacity but did not meet the threshold for a "continuing inability to work" before November 2010.

The AAT concluded that Girgs' CITW did not arise until after his return to Australia, making him eligible for DSP as he met all other requirements. The tribunal's decision was based on the evidence that Girgs' health issues did not constitute a "continuing inability to work" until after his return to Australia. As a result, the AAT found in favour of Girgs, overturning the previous decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The matter to be determined is whether the Applicant, Mahir Girgs, is qualified for disability support pension (DSP).PRIOR DECISIONS The Applicant made a claim for DSP on 2 March 2011. Centrelink rejected the Applicant’s claim for DSP on 13 April 2011 on the basis that Mr Girgs did not meet the residency requirements. An authorised review officer affirmed the Centrelink decision on 18 September 2012. An application for review of the matter was made to the SSAT and on 23 November 2012 the decision under the review was affirmed. The SSAT decision is less than two pages in length and the decision was based on Mr Girgs not being residentially qualified for the disability pension because he had not been resident in Australia for the required residency period of ten years (at the time that his application was made on 2 March 2011). The various decisions made and referred to above were focussed on whether Mr Girgs met the 10 year Australian residency requirement or whether his disability arose at an earlier time whilst he was resident in Australia (in the late 1990s). In the SSAT decision, there was no consideration of whether Mr Girgs’ continuing inability to work (CITW) arose after he arrived back in Australia on 2 November 2010 (although the decision contained the acknowledgement that if a person’s CITW occurred at the time the claimant was resident in Australia the person was not required to meet the 10 year residency requirement). This focus is probably due to the fact that Mr Girgs speaks little English, was either self represented or was assisted by Reverend Father Tadros El-Bakhoumi (who acted as his friend in the proceedings) and because he may not have appreciated that this later period was important to consider in the context of the legislation relating to DSP eligibility. At the hearing at this Tribunal, Mr Girgs was represented, and much of the hearing was focussed on this later period from 2 November 2010.THE ISSUE The issue that the Tribunal is required to determine was whether the Applicant was a resident at the time when his CITW arose.THE LEGISLATION The legislation that was considered is set out below. A number of issues were not contentious. There is no dispute that Mr Girgs met the requirement under the Social Security Act 1991 (the Act) that he had impairments which were rated 20 points or more under the Impairment Tables at the time that he made his application on 2 March 2011. Those impairments are: neck disorder (rated 5 impairment points), spinal disorder (rated 10 impairment points), depression (rated 10 impairment points) and osteoarthritis (rated 10 impairment points). Mr Girgs also has Hepatitis C which was rated nil impairment points. There was no dispute that the 10 year qualifying Australian residency requirement was not met. A Job Capacity Assessment (JCA) report dated 13 April 2011 found, and it is not disputed, that Mr Girgs has a CITW. The issue in dispute is whether Mr Girgs’ CITW, according to the legislative definition, arose following his arrival back in Australia on 2 November 2010 (which would mean that he qualified for the DSP as he did not need to meet the 10 year Australian residency requirement) or whether his CITW arose prior to that time (which would mean that he did not qualify for the DSP as he did not meet the residency requirement).

Ratio Decidendi

Legal Principle Established

A job capacity assessment interview was undertaken on 31 March 2011 and in the report of 13 April 2011 (T10) it seems clear that at that time Mr Girgs had a CITW.CONSIDERATION The legislation provides that, as a general rule, a person qualifies for disability support pension, or DSP, if that person is an Australian resident, meets the CITW requirement and their impairments are rated at least 20 points under the Impairment Tables. There are, however, some exceptions to this general approach in that there is a 10 year qualifying residential requirement if the CITW did not first arise at a time when the person was a resident of Australia. The legislation states that the applicant must be an Australian resident “when the person first satisfies paragraph (c)” or must meet the 10 year qualifying Australian residence requirement. In this matter there is no dispute that Mr Girgs does not meet the 10 year residential qualifying period. The question is, whether Mr Girgs was an Australian resident when he satisfied section 94(1)(c), that is, when it could be said that “the person has a continuing inability to work.” Put another way, did the CITW arise after Mr Girgs arrived in Australia on 2 November 2010? If it did, then Mr Girgs qualifies for the DSP having met all the other requirements set out in the legislation. In considering this issue, it is necessary to consider evidence given at the hearing and other written material. That evidence supports the conclusion that Mr Girgs had some longstanding health issues that impacted on his ability to work from the late 1990s when he was originally resident in Australia. However, both the Respondent and Mr Girgs agreed that these were not sufficient to meet the CITW requirements. The Respondent submitted that the CITW arose during the period whilst Mr Girgs was in Egypt. The question is whether his health issues were such that his CITW arose prior to or after 2 November 2010? The evidence suggests that the health issues prior to 2010 were not sufficient to prevent Mr Girgs from working and that he did not have a “continuing inability to work”. He may have had some temporary inability until around 2002, however the evidence is that from 2002 until his arrival in Australia in November 2010 he was able to work part time at the Department of Education and that he also worked as a full time carer for his mother who had been paralysed with a stroke until her death in 2010. On his arrival back in Australia, the evidence was that he was working although “on trial” and with uncertain remuneration. The medical evidence of his treating doctor, supported by the JCA, was that he had some incapacity, but this did not equate to a “continuing inability to work”. The meaning of “continuing inability to work” has been explored on a number of occasions by the SSAT, AAT and Federal Court. Under the Social Security (Administration) Act1999 the role of the AAT is to decide whether the Applicant establishes a case for a pension as at the time of the DSP application or in the 13 week period thereafter, that is, during the relevant period.