Nolte-Wilson and Secretary, Department of Family and Community Services

[2004] AATA 434

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 434

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/270

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LINDA NOLTE-WILSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNIY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM., (Part-time Member)

Date30 April 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension - portability - severity of disability - hepatitis C - fatigue - depression - scoliosis of spine - continuing inability to work - Guide to Social Security Law - SSAT

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

Guide to Social Security Law

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

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

Re Bourboulas and Secretary, Department of Social Security, AATA 12045 (27 July 1997)

Re Blundell and Secretary, Department of Social Security (1998) 3(5) SSR 59

Re Secretary, Department of Social Security and Tsakrios (1994) AATA 9313

Re Vrdoljak and Secretary, Department of Family and Community Services (2000) AATA 629

Re Walsh and Secretary, Department of Family and Community Services (2002) AATA 881

REASONS FOR DECISION

30 April 2004 Associate Professor B W Davis AM., (Part-time Member)   

Decision Under Review

1. This is an appeal against a decision made by a Centrelink officer on 11 February 2002, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 15 August 2002, that Ms Nolte-Wilson’s disability support pension was only portable for a 26 week period from the time she departed Australia to visit South Africa, because she was not “severely disabled” under s23(4B) of the Social Security Act 1991 (“the Act”).

Issues

2.      There are two principal issues:

(a)Whether the applicant was “severely disabled” as defined in s23(4B) of the Act at the time she departed Australia and therefore entitled to receive DSP for an indefinite period while residing overseas (s1217 of the Act).

(b)Whether the applicant was, during the portability period, prevented from returning to Australia because of an event (eg serious illness), occurring after she left Australia.

Standard of Proof

3.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background

4.      The applicant, Linda Nolte-Wilson, was granted disability support pension (DSP) on 14 March 2001.   In January 2002 the applicant advised Centrelink she was going overseas to South Africa for more than 26 weeks.   She was advised by letter from Centrelink on 11 February 2002 she would only receive DSP for a period of 26 weeks, because she was not severely disabled.   On 11 February 2002 the applicant left Australia for South Africa and has remained there since.

5.      On 5 March 2002 the applicant sought review of the initial decision; particularly that pension portability would be limited to 26 weeks.   On 5 April 2002 the original decision-maker reaffirmed the decision and it was further affirmed by an authorised review officer (ARO) on 16 May 2002.   The applicant then sought review by the Social Security Appeals Tribunal (SSAT), which considered the case again and affirmed the decision on 15 August 2002.  There had been some intervening medical events, but the Tribunal was only required to deal with the issue of whether the applicant was severely disabled at the time of departure from Australia and had exceeded the portability period.

6.      Ms Linda Nolte-Wilson then sought review by the Administrative Appeals Tribunal on 2 October 2002.  Given that she was residing in South Africa, she later agreed to a decision on the papers.

Initial Decision

7.      Centrelink advised the applicant by letter dated 11 February 2002, that the portability period for DSP was limited to 26 weeks and that the then available medical evidence had assessed her as likely to be medically fit for part-time work within the next six months.   She was judged not to be “severely disabled”, although suffering from hepatitis C and scoliosis.  It was on this basis that the decision to limit her pension portability to a 26 week period was affirmed in April 2002.

8.      The matter was further considered by the SSAT on 15 August 2002.   The Tribunal had before it considerable Centrelink documentation, medical reports, correspondence from Ms Nolte-Wilson and her partner Mr Richard Wilson and information from a Professor Batey concerning the applicant’s prospects for returning to work.

9.      The SSAT accepted as fact the applicant suffered hepatitis C and scoliosis and these illnesses caused chronic and debilitating symptoms.   In a work ability form dated 19 January 2002, Ms Nolte-Wilson claimed she would not be able to return to either part-time or full-time work for more than two years and would be unable to complete a rehabilitation program or training, because of her disabilities.

10.     The Tribunal noted that Ms Nolte-Wilson had asked Centrelink to retrieve some earlier medical information on file, but in August 2002 the ARO notified the Tribunal that some of these records may have been destroyed.   However, the SSAT considered the principal issue was the applicant’s health at the time of leaving Australia and here the evidence of Dr Martin and Professor Batey was considered more relevant.

11.     In written correspondence to the Tribunal Ms Nolte-Wilson claimed that Dr Martin appeared to have changed his report dated 1 February 2002.   It appeared he had marked the box “more than two years”, before she would be able to return to work, but then amended this to “within six months”.   The Tribunal agreed the report appeared to have been amended, but would have to accept the medical report as written.

12.     Professor Batey’s letters and discussions with Centrelink tended to support the findings of the treating doctor.   In a letter dated 22 March 2002, Professor Batey stated he was willing to support Ms Nolte-Wilson’s application for continuation of her DSP for more than 26 weeks outside the country; however he believed medical review should occur within twelve months, to determine whether there was a possibility of return to work.   Professor Batey also stated he would not accept a need to continue the pension for two years without significant medical review.

13.     The Tribunal also noted a memo prepared by a Centrelink officer, after a telephone conversation with Professor Batey.   The latter had accepted Dr Martin’s opinion that Ms Nolte-Wilson would be medically fit for work within six to twelve months; she was not fit for major physical work, but was capable of doing something for 8 hours per week.

14.     Having considered these medical reports, the Tribunal decided they would not support the applicant’s contention that she was totally unfit to work for more than two years.   Ms Nolte-Wilson failed to qualify as severely disabled and therefore she could not continue to receive the disability support pension for more than 26 weeks while overseas.   The SSAT therefore affirmed the decision under review.

Analysis

15.     The AAT is required to stand in the shoes of the original decision-maker, examining all evidence anew, noting relevant policy and statutory provisions, as well as any significant case determinations.

16. Division 2 of the Act provides for portability of social security payments when a recipient of social security leaves Australia and s1214 of the Act reinforces this, by providing a right to continued payment during absence, subject to various conditions.

17. Section 1215 of the Act provides that if the person’s maximum portability period is not an unlimited period, their right to payment throughout the portability period is not affected merely by their absence, but after the portability period ends, the payment is not payable to the person while they remain absent from Australia.

18. Section 1217 of the Act sets out the maximum portability period for various payments. In relation to disability support pension (DSP), s1217 says that for a severely disabled person the maximum portability period is an unlimited period. For a person who is not severely disabled, the maximum portability period is 26 weeks.

19. Subsection 23(4B) of the Act gives a definition of ‘severely disabled”. According to that sub-section, a person is severely disabled if they are totally unable to work for at least two years and unable to benefit from rehabilitation or retraining within that period. Centrelink have interpreted the term “totally unable to work” as meaning the person is unable to work for at least eight hours per week, which is a more generous interpretation than a strict reading of the Act would provide.

20.     Having established the statutory and policy basis regarding portability of disability support pension, it is now time to consider the principal issues in the applicant’s case:

(a)was Linda Nolte-Wilson severely disabled at the time of departure from Australia to South Africa?

(b)was there any event during the portability period, preventing her from returning to Australia?

(c)did Centrelink act lawfully in cancelling her pension, when her absence exceeded the permitted portability period of 26 weeks?

21.     Hepatitis C and scoliosis must be regarded as serious disabilities and the  reports of Professor Batey, dated 12 March 1997 and 25 August 1998, and Dr Martin dated March 2001 confirm this, however what is more relevant in the current appeal is Ms Nolte-Wilson’s medical condition in 2001 and 2002 prior to her departure for South Africa.

22.     A report by Dr D Arad, Medical Advisor to Health Services Australia, dated 12 April 2001, indicated an impairment rating of 20 points, but noted the applicant was fit for 30 hours per week of light duties.   A medical report by Dr C Martin, general practitioner, dated 1 February 2002, indicated Ms Nolte-Wilson would be fit for part-time work of up to 8 hours per week, within six months (amended from two years).   An assessment by Professor R Batey, gastroenterologist, dated 23 March 2002, favoured continuation of DSP for more than 26 weeks, outside the country, but stressed the need for review within twelve months and not to continue the pension for two years without significant medical review.    None of these practitioners classified the applicant as severely disabled and all appear to have had some expectation of future capacity for part-time work.

23.     There is supplementary evidence in the form of a witness statement dated 23 March 2004 from the Centrelink officer who affirmed the original decision in May 2002.   This confirmed Professor Batey had considered the definition of “severely disabled” and stated at that time (May 2002) the applicant was capable of working 8 hours per week.   As against this, Mr Hamish Locke claimed in April 2003 Ms Nolte-Wilson’s condition had deteriorated since arrival in South Africa and she was unable to return to Australia.   No medical evidence was tendered.   A letter from a Dr P Louw of Claremont, Western Australia, dated 15 May 2003 indicated the applicant had returned to Australia and was being treated, but he was not in a position to identify her medical condition while in South Africa.   Subsequent information from Dr P Louw and a Dr A Carien indicate that Ms Nolte-Wilson’s condition has further deteriorated and as at early 2004 she was incapable of working for at least two years.

24. It should be noted there is no international agreement between South Africa and Australia concerning portability of pensions, thus the current case relies upon Australian law, especially provisions of s1217 of the Act. Having considered all evidence anew, the Tribunal finds that:

(a)there is no medical evidence the applicant was severely disabled at the time of departure, thus a 26 week portability period applied;

(b)while it is possible Ms Nolte-Wilson’s condition may have subsequently worsened, no evidence was tendered as to whether or not this occurred during her period in South Africa;

(c)the decision to cancel her disability support pension was lawfully made, when she exceeded the 26 week period specified in s1217 of the Act. She had been formally warned not to exceed this period but ignored this advice.

25.     On this basis her appeal does not succeed and the decision under review is affirmed.

26.     There are numerous case determinations which reinforce this decision.   See, for example, Secretary, Department of Social Security and Tsakrios (1994) 79 SSR 1154, where an impairment was sufficient for the individual to qualify for DSP, but not so severe as to make the applicant incapable of undertaking any part-time work.   Further elaboration on such conditions is provided in Bourboulas and Secretary, Department of Social Security, AATA 12045 (27 July 1997) also Blundell and Secretary, Department of social Security (1998) 3(5) SSR 59,  which draw attention to prospects for rehabilitation, retraining and prospective ability to undertake a range of personal, social or community activities, as well as part-time work.   The applicant has not supplied any evidence to indicate whether or not such action has been contemplated.

Decision

27.     The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM., (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing     Overseas application - matter decided on the papers.

Date of Decision       30 April 2004