Mitchell and Secretary, Department of Social Services (Social services second review) - [2017] AATA 2562

Mitchell and Secretary, Department of Social Services (Social services second review) [2017] AATA 2562 (7 December 2017)
Division:GENERAL DIVISION
File Number: 2017/2905
Re:Raina Mitchell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION

Tribunal:Member D K Grigg
Date:7 December 2017
Place:Brisbane

The Tribunal affirms the decision under review.
................................[Sgd]........................................
Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – application of Social Security (International Agreements) Act 1999 - whether severely disabled - decision under review affirmed

LEGISLATION
Legislation Act 2003 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

CASES

Al-Janabi v Secretary, Department of Social Services [2017] AATA 1541
Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Hamdallah and Secretary, Department of Social Services [2017] AATA 2032
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275
Stretch; Secretary, Department of Social Services and (Social services second review)
[2017] AATA 1429
Tamua and Secretary Department of Social Services [2016] AATA 757

REASONS FOR DECISION
Member D K Grigg
7 December 2017
INTRODUCTION & CLAIM HISTORY

Miss Mitchell is a New Zealand citizen and the holder of a visa subclass 444.[1]
[1] Exhibit 1, T Documents, T13, page 126, Miss Mitchell’s Claim for DSP dated 7 July 2016.
On 3 August 2016 Miss Mitchell lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[2]
·Seizures
·Graves Disease (hyperthyroidism)
·Back problems
[2] Exhibit 1, T Documents, T13, page 146, Miss Mitchell’s Claim for DSP dated 7 July 2016.
Miss Mitchell claims her medical conditions affect her ability to work because she is dizzy and drowsy, and can faint and have seizures at any time.[3]
[3] Exhibit 1, T Documents, T13, page 147, Miss Mitchell’s Claim for DSP dated 7 July 2016.
Dr Mullett, General Practitioner, described Miss Mitchell’s medical conditions as “unexplained seizure disorder”, “low back pain” and “thyroid disorder”.[4] Dr Mullett reported in August 2016 that, in relation to her seizures, Miss Mitchell can have unpredictable loss of consciousness and shaking and that the prognosis was uncertain.[5]
[4] Exhibit 1, T Documents, T14, page 151, Medical Certificate of Dr Mullett dated 11 August 2016.
[5] Exhibit 1, T Documents, T14, page 151, Medical Certificate of Dr Mullett dated 11 August 2016.
A Job Capacity Assessment (“JCA”) was undertaken with Miss Mitchell face-to-face with a Rehabilitation Counsellor on 28 September 2016. The JCA reported that Miss Mitchell said the seizures had been occurring since March 2016. The JCA noted that Miss Mitchell was yet to be reviewed by a neurologist and concluded that, due to limited medical information, Miss Mitchell’s medical conditions could not be considered fully diagnosed, treated or stabilied.[6]
[6] Exhibit 1, T Documents, T15, page 154, JCA Report dated 24 October 2016.
On 26 October 2016, the Department of Human Services (“Centrelink”) rejected Miss Mitchell’s claim for DSP on the ground that she did not qualify as “severely disabled” pursuant to the Social Security (International Agreements) Act 1999 (Cth) (“IAA”).[7]
[7] Exhibit 1, T Documents, T16, pages 158 – 160, Rejection of claim for DSP dated 26 October 2016.
Miss Mitchell was referred to a neurologist in November 2016.[8] Dr Peter Bailey, Neurologist, reported that, after examining Miss Mitchell, he suspected she was having seizures and started her on Keppra.[9]
[8] Exhibit 1, T Documents, T18, page 162, Referral from Dr Mullett to Neurologist dated 1 November 2016.
[9] Exhibit 1, T Documents, T19, page 163, Report of Dr Bailey dated 25 November 2016.
Miss Mitchell sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful.[10]
[10] Exhibit 1, T Documents, T20, pages 164 – 168, Decision of ARO dated 7 December 2016.
Miss Mitchell then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Miss Mitchell’s claim and affirmed the ARO’s decision on 10 May 2017.[11]
[11] Exhibit 1, T Documents, T2, pages 6-16, SSCSD’s Decision and Reasons for Decision dated 10 May 2017.
Miss Mitchell has sought a review of the SSCSD’s decision by this Tribunal and contends that she has epilepsy and, and as a result, cannot work within the next 2 years.[12]
[12] Exhibit 1, T Documents, T1, pages 1 – 5, Application for Second Review of Decision dated 18 May 2017.

ISSUES FOR DETERMINATION

The legislation relevant to an application for DSP in Australia is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 29 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) identifies, relevantly, that a claim for a social security payment under the Act may only be made by a person who:
(a) is an Australian resident; and

(b) is in Australia.
Section 94(1) of the Act relevantly prescribes that to qualify for DSP under the Act the following requirements must be met (“Section 94 Requirements”):-
(a)the person must have a physical, intellectual or psychiatric impairment;
(b)the person’s impairment must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[13]
(c)the person has a continuing inability to work;
(d)…
(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.
[13] A legislative instrument made under the Act: see Social Security Act 1991 (Cth), section 26(1).
Given that Miss Mitchell is a citizen of New Zealand, the IAA and the “Agreement on Social Security between the Government of Australia and the Government of New Zealand” (“NZA”) in Schedule 3 to the IAA are also relevant to her DSP application.
The issues to be determined by this Tribunal are:
(a)whether Miss Mitchell is entitled to claim DSP in Australia; and, if yes,
(b)the criteria by which Miss Mitchell is to be assessed in order to qualify for DSP.
The Tribunal has to consider whether Miss Mitchell is:
(a)required to satisfy the requirements set out in both section 94 of the Act and the NZA; or
(b)only required to satisfy the requirements set out in the NZA.

IS MISS MITCHELL ENTITLED TO CLAIM DSP IN AUSTRALIA

Operation of the International Agreements Act (IAA)

This Tribunal discussed the operation of the IAA recently in Hamdallah and Secretary, Department of Social Services [2017] AATA 2032 (“Hamdallah”) as follows:
[14] The current version of the IAA, in force from July 2017, states that it commenced on 20 March 2000.[14] The long title for the IAA provides that it is an “Act to give effect to international social security agreements, and for related purposes.”
[15] The original Agreement on Social Security between the Government of Australia and the Government of New Zealand contained in Schedule 3 of the IAA, came into force on 1 July 2002 (“2002 NZA”). The 2002 NZA was in effect up until a new NZA was tabled in the Parliament on 7 February 2017, which came into force on 1 July 2017 (“2017 NZA”).[15]
[16] The 2017 NZA has some substantive differences to the 2002 NZA. For example:
Article 5 has been amended to define New Zealand residents in Australia on Special Category Visas as Australian residents, allowing them to claim the benefits covered by the Agreement; and
Article 12(4), which provided in the 2002 NZA that “No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand” has now been deleted.
[14] If an Act or a provision of an Act is expressed to come into operation on a particular day (whether the expression "come into operation" or "commence" is used), it comes into operation at the start of the day: Acts Interpretation Act 1901 (Cth), s 3.
[15] 2017 NZA, Article 27.
As Miss Mitchell lodged her claim for DSP prior to 1 July 2017, her qualification for DSP is to be determined in accordance with the 2002 NZA.[16]
[16] See Article 26(2) of the 2017 NZA and Articles 12(4) or 14(2) of the 2002 NZA.
The IAA forms part of the social security law in Australia.[17]
[17] IAA, s 4.
Section 3 of the IAA provides that:
(1) Unless a contrary intention appears, an expression that is used in the Social Security Act 1991 has the same meaning, when used in this Act, as in the Social Security Act 1991.
(2) A reference in this Act (other than the reference in section 4) to the social security law is a reference to this Act, the Social Security Act 1991 and any other Act that is expressed to form part of the social security law.
(3) A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the Social Security Act 1991 or any other Act that is expressed to form part of the social security law. [my emphasis]
Schedule 3 to the IAA contains the 2002 NZA. The preamble to the 2002 NZA provides that Australia and New Zealand agreed to enter into the agreement:
WISHING to strengthen the existing friendly relations between the two countries, and DESIRING to coordinate the operation of their respective social security systems and to enhance the equitable access by people covered by this Agreement to specified social security benefits provided for under the laws of both countries
Article 2(1)(a)(ii) of the 2002 NZA establishes that the 2002 NZA applies to legislation, such as the Act, applying to or affecting the DSP.
Section 6 of the IAA states that the provisions of the 2002 NZA have effect despite anything in the social security law (which includes the Act), in so far as the provision is in force and affects the operation of the social security law.[18]
[18] IAA, ss 6(1) and (2),

Residency Requirement for DSP

Does Miss Mitchell satisfy the residency requirements under Section 94(1)(e) of the Act

Section 7(2) of the Act provides that a person is an “Australian resident” if they are 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 Special Category Visa (SCV) holder.
Miss Mitchell resides in Australia and is the holder of a visa subclass 444 which is a temporary visa that allows New Zealand citizens to visit, study, stay and work in Australia.[19] Miss Mitchell does not hold a permanent visa, or a protected SCV. Therefore, Miss Mitchell does not satisfy the definition of “Australian resident” under section 7(2)(b) of the Act and is not residentially qualified for DSP under the Act.

Does Miss Mitchell satisfy the residency requirements under the 2002 NZA?

[19] Exhibit 1, T Documents, T25, page 191, Centrelink records.

The 2002 NZA needs to be considered because it has effect “despite anything in the social security law” which includes the Act.[20]
[20] See 2002 NZA, Article 2(1)(a)(ii); and IAA ss 4 and 6(1) referred to above.
The 2002 NZA applies to persons who are Australian or New Zealand residents.[21]
[21] 2002 NZA, Article 3.
Article 5 of the 2002 NZA sets out what is meant by “Australian resident”:
1.“Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. In deciding whether a person is residing in Australia, regard must be had to the following factors:
(a) the nature of the accommodation used by the person in Australia;
(b)the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person’s employment, business or financial ties with Australia;
(d) the nature and extent of the person’s assets located in Australia;
(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;
and “residence in Australia” has a corresponding meaning. [my emphasis]
Article 12(4) of the 2002 NZA is also relevant. It provides that:
No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand.
Therefore, as set out in Articles 5 and 12(4) of the 2002 NZA, for the 2002 NZA to apply to Miss Mitchell, Miss Mitchell has to either:
(a)comply with the meaning of “Australian resident” as set out in section 7(2) of the Act; or
(b)have lawfully resided in Australia; and
(c)accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand.
The Tribunal has found that Miss Mitchell does not satisfy section 7(2) of the Act, and as a result does not satisfy section 94(1)(e) of the Act. However, considering the 2002 NZA, it is not in dispute that Miss Mitchell lawfully resides in Australia and the Secretary accepts that at the time of her DSP claim Miss Mitchell had an aggregate of more than 10 years residence in Australia and/or New Zealand.[22]
[22] Exhibit 2, Secretary’s Statement of Facts & Contentions dated 27 October 2017, para 31.
By virtue of section 6 of the IAA, Articles 5 and 12(4) have the effect of overriding sections 7(2) and 94(1)(e) of the Act, resulting in Miss Mitchell satisfying the residency requirement for her DSP claim and entitling her to claim DSP in Australia.[23]
[23] This was confirmed by the Full Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75. See also discussion in Hamdallah and Secretary, Department of Social Services [2017] AATA 2032, at [32]-[33].

THE CRITERIA BY WHICH MISS MITCHELL IS TO BE ASSESSED TO QUALIFY
FOR DSP

The next issue to be resolved is whether Article 2(2) of the 2002 NZA overrides the requirements in sections 94(1)(a)-(c), or just section 94(1)(c) of the Act.

Criteria to Qualify for DSP under the Act and the 2002 NZA

As referred to earlier, section 94(1) of the Act relevantly prescribes that to qualify for DSP under the Act, the following requirements must be met (“Section 94 Requirements”):-
(a)the person must have a physical, intellectual or psychiatric impairment;
(b)the person’s impairment must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[24]
(c)the person has a continuing inability to work.
[24] A legislative instrument made under the Act: see Social Security Act 1991 (Cth) s 26(1).
Article 2(2) of the 2002 NZA provides that:
For the purposes of this Agreement an Australian disability support pension … 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 they
became severely disabled; 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.
[my emphasis]
“Severely disabled” is defined, relevantly, in Article 1(l)(i) of the 2002 NZA to mean a person who:
(i)has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa)to work for at least the next 2 years; and
(bb)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program
“Date of severe disablement” is defined, relevantly, in Article 1(f) of the 2002 NZA to mean:
…the date a person who applies for a disability support pension or invalid’s benefit was first assessed as meeting the criteria for a disability support pension or invalid’s benefit under this Agreement or, where evidence supports an earlier date, the competent institutions may agree on an earlier date
The Secretary contends that a person must satisfy paragraphs 94(1) (a) and (b) of the Act and Article 2(2) of the NZA in order to qualify for DSP on the basis that Article 2(2) does not address or affect paragraphs 94(1)(a) or (b) of the Act.[25]
[25] Exhibit 2, Secretary’s Statement of Facts & Contentions dated 27 October 2017, para 33.
Article 2(2) expressly limits the DSP to people who meet the three criteria contained therein. Article 2(2) applies to Miss Mitchell. Therefore, at a minimum Miss Mitchell has to meet the criteria in Article 2(2) to qualify for the DSP. However, does Miss Mitchell also need to satisfy sections 94(1)(a) – 94(1)(c) of the Act?
Section 94(1)(c) of the Act would not apply to Miss Mitchell because under the Act a continuing inability to work means someone who can work up to 15 hours per week whereas Article 2 of the 2002 NZA provides that the person must be “totally unable” to work. There is no dispute raised that “totally unable to work” means unable to do any work at all. As the 2002 NZA overrides the Act, in so far as the provisions are inconsistent, section 94(1)(c) of the Act has no application when Article 2(2) applies.
What about sections 94(1)(a) and 94(1)(b) of the Act?

Is section 94(1)(a) of the Act still relevant?

Section 94(1)(a) of the Act provides that one of the criteria that needs to be satisfied to qualify for DSP under the Act is that the “the person has a physical, intellectual or psychiatric impairment”. This is also the requirement of someone who is “severely disabled” under the 2002 NZA.
“Impairment” has the same meaning in Article 2(2) of the 2002 NZA as it does in section 94(1)(a) of the Act.[26] That is, an “Impairment” means “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[27]
[26] 2002 NZA, Article 3(1) and IAA, s 3(1).
[27] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 3.
The requirement of having an “impairment” is already accounted for in Article 2(2). There is no inconsistency between Article 2(2) and section 94(1)(a) of the Act.

Is section 94(1)(b) of the Act still relevant?

Section 94(1)(b) of the Act provides that one of the criteria that needs to be satisfied to qualify for DSP under the Act is that “the person's impairment is of 20 points or more under the Impairment Tables”. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).

In Hamdallah this Tribunal discussed whether section 94(1)(b) of the Act was relevant in this situation as follows:
[47]     In Al-Janabi v Secretary, Department of Social Security [2017] AATA 1541 (“Al-Janabi”) Deputy-President J Walsh and Member Dr Bygrave found that:
[27]…These ordinary requirements [that an impairment be fully diagnosed, fully treated and fully stabilised] derive from the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination); the relevant determination not being part of the social security law, it is therefore not picked up in the New Zealand Agreement” [my emphasis]
[48] This Tribunal respectfully disagrees that the Determination does not form part of the social security law. However, for reasons outlined below, the Tribunal does agree that the Determination is not “picked up” in the 2002 NZA.
[49] Section 3(1) of the IAA provides that a reference in the IAA to the social security law is a reference to the IAA, the Act and any other Act that is expressed to form part of the social security law.
[50]     “Social security law" is defined in section 23(17) of the Act as follows:
A reference in this Act to the social security law is a reference to this Act, the Administration Act and any other Act that is expressed to form part of the social security law.
[51]     The Administration Act is also a part of the social security law.[28]
[28] Administration Act, s 3(4).
[52] Pursuant to section 8(2) of the Legislation Act:
(2) If a primary law gives power to do something by legislative instrument, then:
(a) if the thing is done, it must be done by instrument; and
(b) that instrument is a legislative instrument.
[53]     “Primary law” is defined to mean an Act or an instrument made under an Act, or a provision of an Act or an instrument made under an Act.[29]
[54] Section 26 of the Act, the primary law, provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension. The Determination is a legislative instrument made pursuant to section 26(1) of the Act and section 8, Legislation Act 2003 (“Legislation Act”).
[55] According to the Federal Register of Legislation, established under the Legislation Act as a repository of versions (including authorised versions) of Acts and legislative instruments:[30]
‘legislative instruments’ are laws on matters of detail made by a person or body authorised to do so by the relevant enabling legislation.
[56] Therefore, the Determination is part of the social security law.
[29]         Legislation Act 2003 (Cth), s 4.
[30]
There is no dispute that Article 2(2) of the NZA applies to Miss Mitchell. However, the Secretary contends that even if Miss Mitchell meets the requirements in Article 2(2), that she is still not eligible for DSP unless she also meets the requirements in section 94(1)(b) of the Act.[31]
[31] Exhibit 2, Secretary's Statement of Facts and Contentions dated 27 October 2017, para 35.
This Tribunal went on in Hamdallah to find as follows:
[58] The issue is whether an Impairment must satisfy the requirement in section 94(1)(b) of the Act in addition to Article 2(2) of the 2002 NZA.
[59] There is no reference in Article 2(2), or in the definition of “severely disabled” in Article 1(l)(i) of the 2002 NZA, to needing to rate an impairment in the manner set out in section 94(1)(b) of the Act.
[60]     Article 2(2) of the 2002 NZA requires only three elements to be met. The first element is that Mr Hamdallah is “severely disabled”. The definition of “severely disabled” in the 2002 NZA clarifies that the impairment being considered must, without taking any other factor into account, make the person totally unable:
(a)       to work for at least the next 2 years; and
(b)       unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.
[61] There is no requirement that the Impairment being considered needs to be rated under the Impairment Tables.The requirement in section 94(1)(b) of the Act is inconsistent with the requirement of the 2002 NZA.
[62]     In Mahrous the Full Federal Court said (at [61]):
Article 2(2) …is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement. Thus, article 2(2) expressly provides that “[f]or the purposes of this Agreement an Australian disability support pension … shall be limited to cases where” the person is severely disabled (article 2(2)(a), read with article 1(1)(l)); was a resident of Australia or New Zealand at the date of severe disablement (article 2(2)(b), read with article 1(1)(f)); and was residing in New Zealand for a period of not less than one year at any time prior to the date of severe disablement (article 2(2)(c)).
[63]     The Court in Mahrous also explained that (at [64]):
A disability support pension is only available under the Agreement where a person is severely disabled, in accordance with article 2(2)(a), and otherwise satisfied the residence requirements in article 2(2). Where a person has an impairment sufficient to qualify as severely disabled, it is unsurprising that article 12(4) treats residence in Australia and New Zealand as equivalent, in order, as the preamble states, “to enhance … equitable access” to disability support pensions. The position of a severely disabled person necessarily attracts unique considerations and calls for special provision, in order to meet this object. [my emphasis]
[64]     As explained by the Full Federal Court in Mahrous, the words “shall be limited to” in Article 2(2) expressly provides what cases an Australian DSP will be limited to. The ordinary meaning of “limited” means to confine, restrict in size or narrow.[32]
[32]         See Macquarie Dictionary Online and Oxford Dictionary Online.
[65]     Logan J at first instance in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275 addressed the approach to construction of the 2002 NZA and held that:
[32]…the international agreement…forms a schedule to an Australian Act. That means…the primary object should be to construe all of the provisions in a way which is consistent with the language and purpose of all of the provisions in the statute.
[66] In interpreting the IAA and the 2002 NZA “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation”.[33]
[33]         Acts Interpretation Act 1901 (Cth), s 15AA.
[67]     Justice Logan explained:
33. Allowance must be made, in terms of the language of the international agreement, for the fact that it is an agreement negotiated between nation states by diplomatic representatives. It has not been drafted by parliamentary counsel. There are many indications in the international agreement that its drafting has this feature. In Art 12, para 4 itself reference is made to an entitlement to claim a Disability Support Pension, “under this agreement”. The claim though for such a pension is one made under the Social Security Act not the International Agreements Act or, for that matter, the international agreement. What the author presumably meant was a claim under whatever was the social security law of Australia governing Disability Support Pensions.
34.The terms of the recital found in Pt A of the international agreement are not to be ignored. An end to which that agreement, as incorporated into Australian law, is directed is the coordination of the two countries’ social security systems and an enhanced and equitable access by people covered by the agreement to specified social security benefits provided for by the law of Australia and New Zealand. One sees, so far as Australia is concerned, that those specified benefits are the Age Pension, the Disability Support Pension and Carer Payment in respect of the partner of a person who is in a receipt of a Disability Support Pension: see Art 2, para 1(a).
[68]     Article 2(2) is found in the section called “Legislative Scope” and begins with the words “For the purpose of this Agreement”. The Full Federal Court in Mahrous noted that Article 2 was “critical to understanding the application and content of the Agreement”.[34]
[34] [2013] FCAFC 75, at [27].
[69]     For the same reason applied by the Full Federal Court in Mahrous in relation to Article 12(4),[35] the Tribunal considers that Article 2(2) describes the category of persons who are entitled to a DSP benefit. Article 2(2) does not limit itself by referring to who is entitled to claim DSP, rather, it specifically addresses who is entitled to receive the benefit.[36] Section 94(1)(b) of the Act is also specifically concerned with addressing which persons are entitled to receive the DSP and that is why it is overridden by Article 2(2).
[70] The IAA reinforces in section 6 that the provisions of the 2002 NZA have effect despite anything in the Act.
[71]     In Al-Janabi, a decision made the same day as the hearing of this matter, Deputy-President J Walsh and Member Dr Bygrave were not persuaded that Article 2(2) of the 2002 NZA provided an alternative means of qualification for DSP. They said (at [27]):
…It seems unlikely this was ever intended. Indeed, the alternative view would lead to a situation where an Australian citizen, born in Australia and who had lived most of their life here, could rely on the New Zealand Agreement to qualify for disability support pension, if they happened to have lived in New Zealand for 12 months or more as a child, for example. It is difficult to discern why such an individual, who would not need to rely on the New Zealand Agreement to meet the necessary residency tests, should be relieved of requirements to have an impairment rating of at least 20 points under the Impairment Tables and a continuing inability to work (including meeting the program of support requirements if they did not achieve an impairment rating of 20 points under a single Table). And, as the Secretary submits, it is difficult to see why it would be intended that a person who relies on the New Zealand Agreement would not have to meet the requirements for any condition/s to be fully diagnosed, fully treated and fully stabilised before impairment might be assessed, these requirements applying to claimants relying on the Act alone. These ordinary requirements derive from the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination); the relevant determination not being part of the social security law, it is therefore not picked up in the New Zealand Agreement.
[72] The concern expressed in Al-Janabi appears to relate more to where a person has resided prior to making a claim under the 2002 NZA rather than whether there is any inherent bias against those claiming under the Act rather than under the Agreement. Australia and New Zealand have agreed to treat each other’s citizens as relative equals when it comes to enabling entitlement to claim certain social security benefits. It is not for this Tribunal to determine whether that policy is one that should or should not have been adopted. The 2002 NZA is concerned with equitable access. That does not necessarily mean equal, it means fair and reasonable.[37]
[73]     In Stretch; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1429 (“Stretch”) Deputy President Dr P McDermott RFD found (at [11]) that Article 2(2) was not “a self-contained legislative regime relating to the entitlement of the respondent for DSP” because it does not, for example, determine the rate of payment.
[74] The Tribunal agrees that Article 2(2) does not encompass every aspect of a DSP claim or the mechanisms under which it is implemented. However, this Tribunal considers that Article 2(2) is self-contained with respect to entitlement, which is what section 94(1)(b) of the Act applies. There is nothing inconsistent between Article 2(2) and sections 41 and 42 and Part 2 clause 3 of Schedule 2 of the Administration Act, to use the example used in Stretch, and that is why Article 2(2) does not override those provisions. However, there is something inconsistent with Article 2(2) and section 94(1)(b) of the Act. The requirement in Article 2(2) of the 2002 NZA is that the applicant be “severely disabled” which is defined in the 2002 NZA. The requirement is not that the applicant have an impairment or impairments with a total impairment rating of 20 points.
[75]     In Tamua and Secretary Department of Social Services [2016] AATA 757 (“Tamua”).Deputy President Alpins, relying on Mahrous, also found that Article 2(2) of the NZA overrides subsections 94(1)(a), (b) and (c) of the Act, such that a person need only demonstrate that they were severely disabled to qualify for DSP.
[35] [2013] FCAFC 75, at [51].
[36] [2013] FCAFC 75, see discussion at [59].
[37]         Macquarie Dictionary Online and Oxford English Dictionary Online.
The Secretary disagrees with the decision in Tamua on the basis that Mahrous is not authority for the proposition that all of section 94 is overridden by the operation of Article 2 and that to find otherwise would “mean that New Zealand citizens would be treated more favourably under the [2002 NZA] than Australian citizens who apply for DSP under the Act [because] a person would only need to address the question of work capacity and would not be required to demonstrate that their impairments were fully diagnosed, fully treated or fully stabilised, or that they had an impairment rating of at least 20 points under the Impairment Tables. This distinctly unfair and unequal treatment is clearly not intended and is at odds with the objective behind the payment of DSP itself.”[38]
[38] Exhibit 2, Secretary's Statement of Facts and Contentions dated 27 October 2017, para 35.
For the reasons outlined in Hamdallah this Tribunal disagrees with the Secretary. It is not apparent that New Zealand citizens would be treated more favourably than Australian citizens. The question of work capacity is a significant one and a much stricter requirement than that under section 94(1)(c) of the Act. Australian citizens are required to have a permanent impairment but they are not required to be totally unable to work. Further, as will be seen below, this Tribunal considers that treatment and stabilisation are a relevant consideration when deciding whether someone’s impairment makes them totally unable to work within the next 2 years.
The Tribunal also noted in Hamdallah (at [78]) that a representative of the Secretary explained to the Parliamentary Committee considering the proposed 2017 NZA in February 2017 that “limiting the qualification of DSP [in Article 2(2)] reduces the obligations on New Zealand and Australia, as well as assisting people who could not qualify for a support pension outside the Agreement to meet the qualifying requirements of DSP”.[39]
[39] Report 170 (May 2017), Commonwealth of Australia, “Social Security Agreement - New Zealand; Nuclear Research Cooperation Agreement; Loan Agreement – International Monetary Fund; Harmonization of Wheeled Vehicles – Revision, Chapter 2, paragraphs 2.16;
Therefore, the Tribunal finds that section 94(1)(b) of the Act does not need to be considered for the purpose of Miss Mitchell’s DSP claim. The issue to be determined is whether Miss Mitchell is severely disabled.

IS MISS MITCHELL “SEVERELY DISABLED”?

Relevant Qualification Date

A relevant issue here is whether there is a date by which Miss Mitchell must be found to be severely disabled to qualify for DSP. This issue was also addressed in Hamdallah as follows:
[81] The generally accepted view of this Tribunal has been that, for the purposes of the Act, the date for determining whether a person meets the Section 94 Requirements is the date the claim for DSP was lodged, unless the person becomes qualified within 13 weeks of lodging the claim, in which case the start day is the day he/she becomes qualified.[40] This is usually referred to as the “qualification period”.
[40] Administration Act, ss 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2.
[82] This generally accepted view derives from the Administration Act.[41]
[41] Administration Act, ss 41 and 42; Schedule 2, rule 3.
[83] Rule 4 of Schedule 2 of the Administration Act sets out a further rule for working out the start date. It relevantly provides:
4 Start day--early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
[84]     In Al-Janabi, the Tribunal preferred a more limited view of rule 4 than is generally assumed.[42] It found that “a finding [under rule 4(1)(c)] that a person, at claim, will become qualified because of the passage of time of the occurrence of an event within the 13 week period involves an assessment whether becoming qualified is reasonably certain, if not inevitable” and proceeded to consider whether the applicant in that case was qualified for DSP at the date of his claim, but not within 13 weeks thereafter. The Tribunal in Al-Janabi contends that the assessment of whether a person will become qualified within 13 weeks is an assessment that has to be made at the date of the claim, that is, it is forward-looking.[43] The Tribunal said it is not sufficient that an applicant could become qualified within 13 weeks of the date of the claim if the decision-maker could not be certain at the date of the claim that that would occur.
[42] [2017] AATA 1541, at [14].
[43] [2017] AATA 1541, at [11].
[85]     Rule 4 provides that if a person will become qualified within 13 weeks of the date of the claim and they in fact do become so qualified, the claim is taken to be made on the first day on which that person became qualified. This Tribunal considers that rule 4(1)(c) is guided by rule 4(1)(d). It is only if the person becomes qualified in fact during the 13-week period that they become eligible for payment of a benefit. Although it can be appreciated that an original decision maker may assess a claim for DSP before the expiry of the 13-week period, it is inevitable that by the time of review by this Tribunal, which is a merits review, whether a person became qualified within 13 weeks is usually able to be determined.
[86]     The Tribunal in Al-Janabi gave an example of a situation where a diagnosis made 2 months after a claim of an incurable, untreatable condition, which would mean that the person was qualified for DSP, would be unlikely to meet the requirement in rule 4(1)(c) that at claim they will become qualified within 13 weeks.[44] That may or may not be the case and would depend on the medical evidence. However, this Tribunal considers that if the period in which one could qualify is anytime within 13 weeks from the date of the claim, rule 4(c) seems unnecessary, as only rule 4(d) would be necessary. This Tribunal considers that there is some merit in the view proposed by the Tribunal in Al-Janabi. However, the Tribunal in Al-Janabi made no reference to the Federal Court authority of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252 (and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.)), where Gyles J said at 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time. [my emphasis]
[87]     The Tribunal also notes the decision in Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAR 466, which was approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, where Deputy President Handley said at 473 [31]:
In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following [my emphasis]
[88] The Tribunal accepts that none of these cases consider the view put forward in Al-Janabi, however, they are authority that can be relied upon to support the view that under the Act, to qualify for DSP, Mr Hamdallah must have met the Section 94 Requirements between 3 August 2016 and 2 November 2016 (“Qualification Period”).
[89]     Irrespective of which interpretation of rule 4 is preferred, this Tribunal considers that the rules for calculating the start date under the Administration do not apply by virtue of Article 2(2) of the 2002 NZA.
[44] [2017] AATA 1541, at [13].

This Tribunal, for the same reasons applied in Hamdallah in relation to section 94(1)(b) of the Act, considers that Article 2(2) further limits the provisions of the Act because it provides that DSP is limited to cases where the person was a resident of either Australia or New Zealand “at the date they became severely disabled” and that prior to the “date of severe disablement” the person was residing in Australia or New Zealand for a period of not less than one year at any time. There is no requirement that the assessment of severe disability be made at the date of the claim, rather one must identify the date the person became severely disabled and then assess if the two residency requirements are met. The 2002 NZA has specifically defined the date of severe disablement as being the date the person was first assessed as meeting the criteria for DSP.
Therefore, if Miss Mitchell is found to be severely disabled, the date at which she became so also needs to be determined.
Requirements for Severe Disability
There are 3 requirements to be met under the definition of “severely disabled” in Article 1(l)(i) of the 2002 NZA.
The first requirement is that Miss Mitchell has a physical impairment, a psychiatric impairment or an intellectual impairment. The second requirement is that Miss Mitchell’s impairment/s makes her, without taking into account any other factor, totally unable to work for at least the next 2 years. The third requirement is that Miss Mitchell’s impairment/s makes her, without taking into account any other factor, totally unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.
Does Miss Mitchell have an impairment?
“Impairment” has the same meaning in Article 2(2) as it does in section 94(1)(a).[45] The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[46]
[45] 2002 NZA, Article 3(1); and IAA, section 3(1).
[46] Determination, s 3.

Miss Mitchell’s Medical Conditions
Back Pain Condition

In February 2011 Dr Mullett reported that:[47]
(a)Miss Mitchell has had a 15 year history of low back pain;
(b)Miss Mitchell has not had any x-rays taken;
(c)Miss Mitchell has not been reviewed by a specialist;
(d)Miss Mitchell’s lower back pain impacts on her ability to function in that she is unable to sit or stand for long, she has a poor lifting ability, a sore neck and the shakes;
(e)the impact of Miss Mitchell’s lower back pain is expected to persist for more than 24 months and the impact of this condition on her ability to function is expected to remain unchanged.
[47] Exhibit 1, T Documents, T4, pages 85 – 86, DSP medical report of Dr Mullett dated 2 February 2011.
In October 2011 Dr Mullett reported that Miss Mitchell still had lower back pain which she was treating with analgesics.[48]
[48] Exhibit 1, T Documents, T7, pages 104 – 105, DSP medical report of Dr Mullett dated 20 October 2011.
In August 2016 Dr Mullett reported that Miss Mitchell was still having lower back pain but that there was no current or planned treatment.[49]

Hyperthyroidism

[49] Exhibit 1, T Documents, T14, page 151, Medical certificate of Dr Mullett dated 11 August 2016.

In October 2011 Dr Mullett reported that:[50]
(a)Miss Mitchell had thyrotoxicosis (i.e. hyperthyroidism) which began in July 2011 and was diagnosed from a blood test on 1 September 2011;
(b)Miss Mitchell commenced medication and had less tremor and tachycardia but still has some cognitive difficulties;
(c)the impact of Miss Mitchell’s hyperthyroidism was expected to persist for between 3 – 24 months and the impact of this condition on her ability to function is uncertain.
[50] Exhibit 1, T Documents, T7, pages 102 – 103, DSP medical report of Dr Mullett dated 20 October 2011.
In April 2014 Miss Mitchell underwent a thyroidectomy.[51]
[51] Exhibit 1, T Documents, T9, page 115, Report of Dr Douglas dated 13 June 2016.

Seizures

In June 2016 Dr Alexander Douglas, General Practitioner, referred Miss Mitchell to Dr John Corbett for review and management on the basis of her history which was suggestive of complex partial seizures.[52]
[52] Exhibit 1, T Documents, T9, page 115, Report of Dr Douglas dated 13 June 2016.
Miss Mitchell was reviewed at the Gold Coast University Hospital and in July 2016 she was placed on the Referrals – Neurology Waitlist as urgency category 2.[53]
[53] Exhibit 1, T Documents, T11, page 117, Letter from Gold Coast University Hospital to Dr Mohammed Hossain dated
In August 2016 Dr Mullett reported that Miss Mitchell was still having an unpredictable loss of consciousness and shaking and that her seizure disorder was unexplained.[54]
[54] Exhibit 1, T Documents, T14, page 151, Medical certificate of Dr Mullett dated 11 August 2016.
In November 2016 Dr Mullett reported that Miss Mitchell was still on a waiting list to be seen by a neurologist regarding her seizures. Dr Mullett also noted that her MRI and EEG results were reportedly normal but that the seizures are becoming more frequent (twice a week), that Miss Mitchell had lost a job and was no longer allowed to drive. Dr Mullett requested that she be upgraded to an urgent category 1.[55]
[55] Exhibit 1, T Documents, T18, page 162, Referral from Dr Mullett to neurology, Gold Coast University Hospital dated 1 November 2016.
Dr Peter Bailey, Neurologist at Gold Coast University Hospital, examined Miss Mitchell on 25 November 2016 and reported that he suspected she was having seizures and started her on anti-epileptic medication, Keppra.[56]
[56] Exhibit 1, T Documents, T19, page 163, Report of Dr Bailey dated 25 November 2016.
In February 2017 Dr Bailey reported that he had seen Miss Mitchell regarding three recurrent bouts of loss of consciousness. Dr Bailey reported that Miss Mitchell told him the episodes have resolved over the last three months since she has been on Keppra. Dr Bailey noted that a recent MRI scan was normal and they could not find any EEGs reported in her chart. In Dr Bailey’s opinion “it would appear, therefore, superficially that this lady does have epilepsy and that the treatment with Keppra has provided her with reasonable relief. I would carry on with the drug, probably on an indefinite basis at this juncture”.[57]

Conclusion on Impairments

[57] Exhibit 1, T Documents, T21, page 170, Report of Dr Bailey dated 23 February 2017.

The Secretary accepts that Miss Mitchell suffers from impairments.[58]
[58] Exhibit 2, Secretary's Statement of Facts and Contentions dated 27 October 2017, para 65.
In light of the above medical evidence the Tribunal concludes that Miss Mitchell suffers from a Seizure Impairment.
In relation to the hyperthyroidism, given that Miss Mitchell has had a thyroidectomy and there is no medical evidence before the Tribunal since her surgery, regarding this condition, there is no basis for the Tribunal to assess this condition for the purpose of this DSP application.
In relation to the spinal condition whilst the Tribunal accepts that Miss Mitchell’s general practitioner has reported that she experiences lower back pain, the corroborating medical evidence is that:
(a)there has been diagnosis of the cause of Miss Mitchell’s pain or any review by a specialist;
(b)no diagnostic tests have been undertaken; and
(c)there is no planned treatment, although Miss Mitchell sometimes takes analgesics.
Due to the paucity of medical evidence available the Tribunal is unable to consider this condition for the purposes of this DSP application.
Does Miss Mitchell’s Seizure Impairment make her, without taking into account any other factor, totally unable to work for at least the next 2 years?
The definition of “severely disabled” does not specify that the person concerned must be totally unable to work in any specific role. There is no limitation placed on the meaning of work.
The Secretary submits that Miss Mitchell’s seizure impairment was not fully diagnosed, treated and stabilised.[59] The Secretary also submits that Miss Mitchell is not totally unable to work for at least the next two years and is not unable to benefit within the next two years from participation in a rehabilitation program.[60]
[59] Exhibit 2, Secretary's Statement of Facts and Contentions dated 27 October 2017, para 71.
[60] Exhibit 2, Secretary's Statement of Facts and Contentions dated 27 October 2017, para 98.
In October 2016 the JCA considered that Miss Mitchell had a temporary work capacity of 0-7 hours per week but that with intervention she would have a capacity within 2 years to work 15-22 hours per week.[61]
[61] Exhibit 1, T Documents, T15, pages 155 – 156, JCA Report dated 24 October 2016.
There is simply no evidence available to the Tribunal from Miss Mitchell’s treating doctor’s that suggests that Miss Mitchell is totally unable to work because of her Seizure Impairment. At the time of the DSP claim the condition was undiagnosed and clearly not stable. However, Dr Bailey has reported in February 2017 that Miss Mitchell has indicated that the seizures are under control. There is no further medical evidence available since that time.
There is no medical, or other, evidence which indicates that Miss Mitchell was totally unable to work as a result of her Seizure Impairment. As a result, the Tribunal finds that Miss Mitchell is not “severely disabled”.

Do Miss Mitchell’s impairments make her, without taking into account any other factor, totally unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program?

For the reasons given in paragraphs 77-79, the Tribunal finds that it cannot be said that Miss Mitchell’s impairment would make her totally unable to benefit within the next 2 years from participation in the program of assistance or rehabilitation program.

Conclusion on severe disability

The Tribunal finds that Miss Mitchell is not severely disabled as defined in the 2002 NZA and therefore does not qualify for DSP.

DECISION

Miss Mitchell’s claim fails because she did not qualify for DSP under the 2002 NZA.
The decision under review is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..........................[Sgd]...............................
Associate
Dated: 7 December 2017

Date reserved:
4 December 2017

Applicant:
Hearing on the papers

Advocate for the Respondent:

Solicitors for the Respondent:

Nick Warren, Senior Government Lawyer

Department of Human Services

25 July 2016.

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Citations

Mitchell and Secretary, Department of Social Services (Social services second review) [2017] AATA 2562

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Pickering and Secretary, Department of Social Services (Social services second review) [2018] AATA 4223

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Cases Cited

11

Statutory Material Cited

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Hamdallah and Secretary, Department of Social Services (Social services second review) [2017] AATA 2032

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75

Al-Janabi and Secretary, Department of Social Services (Social services second review) [2017] AATA 1541