Pillai and Secretary, Department of Social Services (Social services second review)
[2019] AATA 1233
•11 June 2019
Pillai and Secretary, Department of Social Services (Social services second review) [2019] AATA 1233 (11 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5186
Re:Richidan Pillai
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:11 June 2019
Place:Sydney
The decision of the Social Services and Child Support Division of the Tribunal made on 5 September 2018 is set aside. The Tribunal determines that the Applicant was eligible for the payment of the Disability Support Pension from the date of claim.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability support pension – New Zealand citizen – Residency requirements – whether Applicant is “severely disabled” – International Agreement – Applicant qualified as resident under international agreement – Decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
CASES
Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541
Eid v Secretary, Department of Families, Housing, Community Service and Indigenous Affairs [2013] 138 ALD 180
Mahrous and Secretary, Department of Families, Housing, Community and Indigenous Affairs [2012] AATA 355
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634
Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275
Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous [2013] FCAFC 75
Secretary, Department of Social Services and Mubarak [2017] AATA 1808
Secretary, Department of Social Services and Stretch [2017] AATA 1429
Shi v Migration Agents Registration Authority [2008] HCA 31
Tamua and Secretary, Department of Social Services [2016] AATA 757
Uebergang and Secretary, Department of Families, Housing, Community Service and Indigenous Affairs [2011] AATA 642
SECONDARY MATERIALS
Dickens, Charles, Oliver Twist (Bentley’s Miscellany, 1838)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
11 June 2019
THE APPLICATION AND APPEALS
Mr Richidan (Dan) Pillai (the Applicant) made an initial application for a grant of the Australian Disability Support Pension (DSP) on 19 August 2016 and this claim was rejected by a delegate of the Secretary (the Respondent) on 17 February 2017.
On 2 March 2017, following a job capacity assessment (on 1 December 2016) the initial refusal decision was affirmed by an Authorised Review Officer (ARO) on 2 March 2017.
On 15 March 2017 the Applicant lodged an appeal against this decision to the Social Services and Child Support Division (AAT1) of this Tribunal which, on 27 September 2017 affirmed the decision under review and provided written reasons for its decision.
On 20 November 2017 the Applicant lodged a second application for the DSP which was again rejected by a delegate of the Secretary on 22 March 2018. That rejection decision was reviewed and affirmed by an ARO on 5 May 2018. The Applicant again appealed to the Social Services and Child Support Division (AAT1) of this Tribunal which, on 5 September 2018 affirmed the decision under review. On this occasion the AAT1 gave only an oral decision in the matter.
On 7 September 2018 the Applicant lodged an appeal with this Tribunal for a review of that AAT1 decision of 5 September 2018. The matter was heard in this Tribunal on 28 May 2019.
The Tribunal notes that the basis upon which the first decision of the AAT1 (27 September 2017) affirmed the ARO rejection decision was materially different from that of the decision made by the delegate (17 February 2017) and affirmed by the ARO (2 March 2017).
It further notes that the oral decision of the second AAT1 (5 September 2018) was not at any stage reduced to writing. However the Tribunal has listened to a recording of the Member’s oral determination which made reference to the findings of the first AAT1 determination and followed it in rejecting the application, again at variance with the departmental findings and decision. It is important to restate that the responsibility of this Tribunal is to determine matters on the basis of the material and evidence before it at the date of its own hearing and, to that extent, the decisions of the two previous AAT1 hearings are not immediately or directly relevant.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634 at [640]; [2008] HCA 31 at [37] per Kirby J.
However, in each instance where a rejection of the application was made by a delegate of the Secretary, and affirmed by an ARO, the basis of that rejection remained the same, namely that the Applicant:
·Did not satisfy the residency requirement to qualify for the DSP;
·Was not “severely” disabled or impaired; and
·The Applicant was a resident of Malaysia when he became “severely” disabled. .[2]
[2] Section 37 Tribunal Documents at [223-224].
MR PILLAI’S HISTORY AND CONDITION
Mr Pillai was born in 1995 in Malaysia. In November 2002 he, together with his mother and other family members, moved to New Zealand. He became a New Zealand citizen and resided in that country until August 2016, a period of 15 years and 9 months. During this time the Applicant visited Australia on a number of occasions totalling some 222 days. The material fact however is that the Applicant lived continuously in New Zealand for a period in excess of ten years.
While in New Zealand he was granted the Supported Living Payment (SLP) which is the equivalent of the Australian DSP. However, because of different methodologies of assessing disability between New Zealand and Australia, mere possession of a New Zealand SLP does not guarantee qualification for the Australian DSP.[3]
[3] Section 37 Tribunal Documents at [223].
This SLP is not portable where a “client’s incapacity to work occurred outside New Zealand or Australia.”[4]
[4] Section 37 Tribunal Documents at [178].
In August 2016 the Applicant arrived in Australia (together with his mother and two siblings) where they joined other members of his family. The Applicant arrived on a Subclass 444 (Special Category) visa which, as a New Zealand citizen, entitled him to remain permanently in Australia, although he is not classified as a permanent resident for migration purposes.
The Applicant is “severely disabled.” This finding in itself is at some stage, not contested by the Respondent,[5] and at other stages qualified by her.[6] The degree of confusion on this matter in the Respondent’s submissions is unhelpful.
[5] Respondent’s Statement of Facts, Issues and Contentions at [3.5].
[6] Ibid at [8.15 subsections 1.2 and 1.3].
A report prepared by Ms Eirini Lammi (a Registered Psychologist), based upon extensive formal testing of the Applicant assessed him for:
·General Adaptive Composite functioning
·Conceptual Domain functioning
·Social Domain functioning
·Practical Domain functioning
·Communication
·Leisure Skills
·Health and Safety
·Self-care
·Motor Abilities.
In each case the Applicant rated as “Extremely low range.”[7]
[7] Report of Ms Lammi (Adult Intellectual Disability Assessment Report), dated 16 August 2019, attached to the Respondent’s Statement of Facts, Issues and Contentions at Tab [4].
Dr James Burrell, a clinical neurologist identifies that he has a “general intellectual disability for which no specific cause has been identified.” Dr Burrell reports that this lack of specific cause identification is “not an uncommon situation”. He notes further that the Applicant suffers “severe intellectual and behavioural disturbances.”[8]
[8] Applicant’s Submission: Report of Dr Burrell (17 September 2018) at Tab [2].
The date of the Applicant’s “severe disability” becoming manifest will be discussed below.
In oral evidence, the Applicant’s mother (Mrs Sharin Barkho) indicated that Dan needs full-time care. He cannot manage matters such as his own personal hygiene, dressing himself, feeding himself or communicating.
At some stage Dan was a participant in some sort of day programme conducted at Eastlakes but this was discontinued because of the difficulties faced by the family travelling from their home in Hillsdale.
His mother also told the Tribunal that Dan had been in another day care programme at Maroubra which, the Tribunal understands, consisted of providing outings and some socialisation activities and was supported through the National Disability Insurance Scheme (NDIS) but that this support had ceased after a review and that Dan was not eligible for NDIS support as he is not an Australian permanent resident.
The New Zealand SLP is payable to New Zealand citizens resident in Australia for a period of 26 weeks after their arrival, and the family received such payments. However, for reasons mentioned above, the New Zealand payments were otherwise deemed not to be portable thereafter.
LEGISLATIVE ARRANGEMENTS
In this instance it is necessary to consider the provisions of both the Social Security Act 1991 (the Act) and the Social Security (International Agreements) Act 1999 (the International Agreement Act).
The Social Security Act
Section 94 of the Act sets out the requirements for qualification for the DSP:
(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i) the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;
(ii) the Secretary is satisfied that the person is able to do work that is exists in Australia, even if not within the person's locally accessible labour market;
(iii) if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; 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; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
In this particular case however, the provisions of the Act itself are not sufficient, on its own, for a determination to be made.
There is a further qualification to be taken into account in assessing DSP eligibility which is contained in the Social Security (Administration) Act 1999. It provides in Schedule 2, subclause 4(1) that DSP claims must be assessed in a period of 13 weeks as from the date of their lodgement. This means that the Applicant’s claim must be assessed on the basis of his condition between 20 November 2017 and 19 February 2018 (the qualifying period).
The International Agreement
The Social Security (International Agreements) Act 1999 is “an Act to give effect to international social security agreements” and in Schedule 3 it incorporates into Australian domestic law an “Agreement on social security between the Government of Australia and the Government of New Zealand.” This Agreement was entered into on 28 March 2001 and amended on 21 February 2002.
There are a number of sections of this Agreement relevant to these proceedings.
Article 1(1)(m) defines “severely disabled” as a person who:
(i) has … an intellectual impairment … which makes the person, without taking into account any other factor, totally unable:
(ii) to work for at least the next 2 years; and
(iii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or…
Article 1(2) provides that any term not defined in the Article shall, unless the context otherwise requires, have the meaning assigned to it in the social security law of either Party.
Article 2(2):
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 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.
Article 5(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 on a special category visa. 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.
There is some difference of opinion in the authorities as to the precise way in which the Act and the Agreement interact and the extent to which, if any, provisions of the Agreement modify or over-ride those of the Act.
In Stretch,[9] the Tribunal considered the relationship between the Agreement and s 94 of the Act in relation to DSP payments. It stated:
9. I respectfully do not adopt the reasoning in Tamua and Secretary, Department of Social Services [2016] AATA 757.
10. The Agreement does not displace the general operation of the social security law of Australia. Indeed, Article 2(1) of the Agreement confirms that the Agreement shall apply to the ‘social security law’ of Australia in relation to the benefit of DSP (Article 2(1)(a)(ii)). The only modification to the application of the social security law of Australia is found in paragraph 2 of Article 2(2) of the Agreement.
11. Article 2 of the Agreement is not a self-contained legislative regime relating to the entitlement of the respondent for DSP. That Article does not, for example, determine how an applicant would claim DSP or what the rate of payment of DSP is, such matters are governed by the application of the ‘social security law’ of Australia.
[9] Secretary, Department of Social Services and Stretch [2017] AATA 1429.
In similar fashion, again with reference to the construction of s 94 of the Act, the Tribunal in Al-Janabi stated:[10]
23. The Tribunal’s attention was drawn to Tamua and Secretary, Department of Social Services [2016] AATA 757 (Tamua), wherein Deputy President Alpins considered that the provisions in the New Zealand Agreement relating to the claimant being “severely disabled” in article 2(2)(a) effectively provided an alternative basis upon which the medical qualification criteria for DSP can be met. Reliance on the Full Court’s judgment in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75 (Mahrous) was said to support this view.
…
27. Having considered the New Zealand Agreement as a whole, the Tribunal is not persuaded that article 2(2) provides an alternative means of qualification for disability support pension …
…
28. The Secretary submits that article 2(2) overrides paragraph 94(1)(c) of the Act relating to continuing inability to work, but does not affect paragraphs 94(1)(a) and (b) …
…
29. The Tribunal considers article 2(2) to be a provision of limitation.
[10] Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541.
The cases to which these decisions make reference adopt a different interpretation of the inter-relationship of the Agreement and the Act.
In Tamua[11] the Tribunal had held that a person was entitled to the Australian DSP if they were “severely disabled” for the purposes of Article 2(2) of the Agreement and importing the New Zealand definition of “severely disabled.” The Tribunal further held that:
“83. Given my conclusion that Ms Tamua was “severely disabled” for the purposes of Article 2(2) of the Agreement when she made her claim for the disability support pension, it follows that she is entitled to disability support pension by virtue of the Agreement. For the reasons I have expressed, it is unnecessary for her to meet any additional requirements which might otherwise apply under s 94(1)(a) to (c) of the Act, as Article 2(2)(a) prevails over those provisions by operation of s 6 of the International Agreements Act.”
[11] Tamua and Secretary, Department of Social Services [2016] AATA 757.
That section reads:
6. Overriding of social security law by scheduled international social security agreements
(1) The provisions of a scheduled international social security agreement have effect despite anything in the social security law.
In Mahrous[12] the Full Federal Court dealt expressly with the question of whether the Agreement’s language was language of limitation.
[12] Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous [2013] FCAFC 75.
It stated:
“ 45. The Secretary relied on the following textual and contextual considerations as indicating that article 12(4) imposed an additional requirement on a person seeking to claim a disability support pension under the Agreement without affecting that persons’ entitlement to a pension.
(1) The language of article 12(4) of the Agreement is that of limitation, not extension or liberalisation.”
In considering that claim by the Secretary the Full Court ruled
“46. None of these considerations is sufficient to persuade us that the Secretary’s interpretation of article 12(4) should be accepted. First, as we show below, we do not consider that article 12(4) necessarily uses the language of limitation.”
While article 12(4) is not directly relevant to this determination, the Tribunal is guided by the Court’s general position that regard should be had to the overriding object of the Agreement which is stated in the Preamble and that, unless expressly stated otherwise, the language if the Agreement should not be read as limiting the rights of applicants.
The Preamble reads:
“Desiring to coordinate the operations 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 by the laws of both countries ….”
The cases in Mahrous are instructive.
Mahrous originally came before the Tribunal to determine whether provisions of the Agreement overrode provision of s 94 of the Act related to residency requirements. In its decision the Tribunal held that “the Social Security Act 1991 (Cth) must be used subject to the Social Security (International Agreements) Act 1999 (Cth). This must be so particularly where an International Treaty has been given legislative effect in the law of Australia.”[13] In this instance the Tribunal referenced the High Court decision in Teoh (among others) in coming to its decision to set aside a decision of the Secretary denying the DSP to the applicant.
[13] Mahrous and Secretary, Department of Families, Housing, Community and Indigenous Affairs [2012] AATA 355 at [31].
On appeal to a single judge of the Federal Court, it was held that the principles cited from Teoh were not relevant because the international treaty (in this instance the Agreement) had been incorporated into domestic law. Nevertheless the decision of the Tribunal was upheld and the Secretary’s appeal dismissed. In doing so, Logan J discussed the inert-relationship of the Act and the Agreement in the following terms:[14]
23. Here, the International Agreements Act gives an overriding effect to the scheduled international social security agreements, including that with New Zealand, so far as what is termed “social security law” is concerned. That overriding effect is subject, in respect of the age pension, to a qualification found in s 6(3) which is not presently material. Social security law is, in effect, a reference to the International Agreements Act, the Social Security Act and any other Act that is expressed to form part of a social security law, see ss 3(2), 3(3) and 4 of the International Agreements Act.
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).
38. Further, to the extent that the totalised outcome derived from Art 12, para 4, differs from that which is found in s 94(1)(e)(ii) read alone, the totalised figure derived from Art 12, para 4, prevails. That is the effect of s 6 of the International Agreements Act. I do not regard Art 12, para 4, as doing nothing more than providing a limitation as to who may take advantage of the international agreement. What it does is to provide a limitation in respect of totalised residence which then becomes paramount, to the extent of any inconsistency, over s 94(1)(3)(ii) if read alone.
39. What that means in the circumstances of this case, as the tribunal correctly concluded, is that Andro does meet the eligibility criterion when one, as Parliament requires, reads s 94(1)(e)(ii) with the terms of Art 12, para 4, as incorporated by and given paramountcy by s 6 of the International Agreements Act.
[14] Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275.
The Secretary then appealed the decision of the single Judge to the Full Court which, in its determination, again dismissed the Secretary’s appeal and affirmed the judgement below. Their Honours again addressed the inter-relationship issue, in the following terms:[15]
62. Further, to construe article 12(4) of the Agreement in the manner for which the Secretary contends would not be justified in light of the preamble to the Agreement. If article 12(4) is construed as the Secretary contends, the article will not “enhance ... equitable access” to disability support pensions. ….
…..
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.
…..
66. When a claim for a disability support pension was made on behalf of the respondent on 2 March 2011, the respondent had more than 10 years of residence in New Zealand and Australia and thus met the residence criterion in article 12(4). Pursuant to article 12(4) of the Agreement, the respondent was “entitled to claim a disability support pension”. This meant that, under the Agreement, not only could he claim a disability support pension but he also satisfied the residence criterion for the pension set out in this article. By virtue of s 6 of the International Agreements Act, this residence criterion overrode the residence requirement in s 94(1)(e)(ii) of the Social Security Act. In the circumstances of the case, the respondent can be taken to be eligible to receive a disability support pension from the date when his parents first claimed the pension on his behalf.
[15] Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous [2013] FCAFC 75 per Kenny, Flick and Kerr JJ.
The Tribunal has to start its consideration processes by determining, in the first instance whether the Applicant satisfies the criteria of section 94 of the Act regarding eligibility for DSP. In the event that the Applicant does not, then this application must be dismissed.
The Respondent makes the following submission:[16]
(a) a person must satisfy sections 94(1)(a), (b) and (d) of the SS Act and Article 2(2) of the New Zealand Agreement in order to qualify for DSP if the person cannot satisfy section 94(1)(e) of the SS Act;
(b) Article 2(2) of the New Zealand Agreement replaces paragraph 94(1)(c) of the SS Act and operates to limit an Australian DSP to those who can satisfy a stricter inability to work test of being ‘totally unable to work’ for at least the next two years,21 as opposed to the usual inability to work 15 hours per week;
(c) the proper construction is that Article 2(2) of the Agreement does not override subsections 94(1)(a) and (b) of the SS Act and, in order to qualify for DSP under the New Zealand Agreement, Mr Pillai must still satisfy both Article 2(2) of the Agreement and sections 94(1)(a) and (b) of the SS Act;
(d) the phrase ‘totally unable to work’ in Article 1(1)(m) of the New Zealand Agreement requires that a person must be completely unable to perform any work at all for the next two years in order to be considered ‘severely disabled’ under Article 2(2);
(e) The definition of ‘severely disabled’ in Article 2(2)(a) of the New Zealand Agreement, as defined in Article 1(1)(m), mirrors the definition of ‘severely disabled’ in subsection 23(4B) of the SS Act; which applied only to assess whether a person qualified for the now defunct ‘special needs disability support pension’ in section 773 of the SS Act;
(f) The person’s claim should be assessed at the date of their claim for DSP and within 13 weeks after that date.
[16] Respondent’s Statement of Facts, Issues and Contentions at [8.2].
Before proceeding to undertake those considerations outlined above, the Tribunal notes that it is specifically cautioned by the Federal Court:
“It is though a necessary discipline in respect of a case touching on whether or not there is eligibility to the payment of a benefit out of the consolidated revenue of the Commonwealth to decide a case according to the true construction of the governing legislation, rather than by reference to humane considerations. Either the legislation provides for the payment of a benefit against particular facts or it does not. To the extent that properly construed it does not in circumstances which may to some seem inhumane, any remedying of that deficiency is a matter for the value judgement of Parliament, not for the Court.”[17]
[17] Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275 at [14].
In this respect the Tribunal also noted that the highly experienced counsel for the Respondent accepted that, in relation to such determinations as this, Mr Bumble’s characterisation of the law may not be totally inapposite.[18]
[18] Dickens, Charles, Oliver Twist (Bentley’s Miscellany, 1838) chapter 51.
SECTION 94 CONSIDERATIONS
Section 94 contains a variety of requirements which may be briefly stated thus:
·94(1)(a) requires a DSP applicant to have an impairment.
·94(1)(b) requires that impairment (or combination of impairments) to reach 20 points as assessed on the Impairment Tables.
·94(1)(c) requires an applicant to have a continuing inability to work or is enrolled in a recognised programme (the supported wage system).
·94(1)(d) requires an applicant to be over the age of 16 years.
·94(1)(da) qualifies other participation requirements.
·94(1)(e) imposes certain residency requirements.
·94(1)(ea) relates to an applicant absent from Australia.
The various subsections are expressed cumulatively – all of them must be satisfied to qualify for the DSP.
There are certain facts uncontested in relation to this Applicant:
1.He is over the age of 16 (hence satisfies 94(1)(d)).
2.He has an impairment (hence satisfies 94(1)(a)).
There is some dispute as to the 20 point qualification. The Social Services and Child Support Division of this Tribunal, in its determination of 27 September 2017 held that no impairment rating could be assigned given due to what is described as a “lack of relevant clinical evidence.”[19] The Tribunal has listened to the recording of the oral statement of reasons given by the same Division (differently constituted) of the Tribunal on 5 September 2018 which came to the same conclusion for the same reasons.
[19] Section 37 Tribunal Documents at [185].
With great respect to both of those Tribunals, this Tribunal disagrees. Without the need to canvass the matter in detail, the Tribunal accepts that clear statement from the Respondent that, during the qualifying period,
“he (the Applicant) satisfied section 94(1)(b) of the SS Act in so far as he should be assigned at least 20 points under Table 9: Intellectual Function”.[20]
[20] Respondent’s Statement of Facts, Issues and Contentions at [6.1(b)].
As such the Applicant satisfies 94(1)(b).
There is some dispute about the Applicant’s “continuing ability to work”. Evidence before the Tribunal from the neurologists Dr Burrell[21] and Dr Hassan[22] and from his mother in unchallenged oral testimony establish that the Applicant is incapable of any form of independent living; has problems managing his personal health and hygiene; cannot travel independently; has problems in communication and cannot attend to matters such as clothing and feeding himself. The report from Ms Lammi reinforces these conclusions.[23] The Tribunal also notes that a Job Capacity Assessment report dated 12 October 2016 reports that “the client would not benefit from participation in any programme.”[24]
[21]Applicant’s Submission: Report of Dr Burrell (17 September 2018) at Tab [2].
[22] Section 37 Tribunal Documents at [189].
[23] Report of Ms Lammi (Adult Intellectual Disability Assessment Report), dated 16 August 2019, attached to the Respondent’s Statement of Facts, Issues and Contentions at Tab [4].
[24] Section 37 Tribunal Documents at [158].
Furthermore, the Respondent contends that the Applicant does not have a “severe disability” as defined under Article 1(1)(m) of the New Zealand Agreement which provides, inter alia, that this includes being “unable to work for at least the next two years.”[25]
[25] Respondent’s Statement of Facts, Issues and Contentions at [1.2].
However, in light of the evidence, the Tribunal rejects any suggestion that the Applicant has any ability to work, in any capacity, for even a most limited amount of time.[26] The Tribunal is satisfied that the Applicant is “severely disabled” in terms of the New Zealand Agreement and has met 20 points under the Australian law.[27] It would apply the principles enunciated in Tamua.
[26] Section 37 Tribunal Documents at [157].
[27] In this respect the Tribunal prefers the approach taken by the Tribunal in Eid v Secretary, Department of Families, Housing, Community Service and Indigenous Affairs [2013] 138 ALD 180 to that taken in Uebergang and Secretary, Department of Families, Housing, Community Service and Indigenous Affairs [2011] AATA 642.
As such, the Applicant satisfies 94(1)(c) and displaces any need for satisfaction of 94(1)(da).
This leaves the question of the Applicant’s residential status. Section (94(1)(e)) has three elements, enumerated and linked by the conjunction “or”, so that only one of the elements needs to be met. Those elements are either for the applicant to have been a resident in Australia when the condition of impairment was first manifest, or have a ten year residential qualification, or be the dependent child of a qualified person.
Clearly the Applicant does not meet the first and third of these requirements. The question before the Tribunal is whether or not the Applicant has has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension (section 94(1)(e)(ii)).
It is at this stage that the provisions of the New Zealand Agreement are to be considered . The Tribunal has already discussed the way in which the Federal Court has addressed this matter but, from its point of view the concession made by the Respondent in this matter is determinative.
In its Statement of Facts, Issues and Contentions, the Respondent states:
During the qualification period Mr Pillai was a New Zealand citizen lawfully residing in Australia. At the time of his claim on 20 November 2017, Mr Pillai had more than 10 years of residence in Australia and New Zealand combined.[28]
[28] Respondent’s Statement of Facts, Issues and Contentions at [7.33].
The Tribunal agrees with this statement. The “totalising” provisions of the New Zealand Agreement operate in such a fashion as to accord residential status in Australia for DSP purposes on the basis of the combined time an applicant has been a permanent resident of either of the countries, taken in combination. The ten year requirement has been described by this Tribunal as being of “harsh operation”[29] and without their being any flexibility for the Tribunal to ignore. However, in this instance the Tribunal is satisfied that the qualification is met.
[29] Secretary, Department of Social Services and Mubarak [2017] AATA 1808 at [71].
As such, the Applicant satisfies 94(1)(e) and thus renders it unnecessary to consider the requirements of subsection 91(1)(ea).
Furthermore, because the Applicant qualifies under section 94(1)(e)(ii) of the Act it is not necessary to consider the objections raised by the Respondent in relation to the nature of the Applicant’s visa status which would otherwise have arisen under section 94(1)(e)(i).
The Tribunal is satisfied that the Applicant meets all of the requirements of section 94(1) of the Act and thus, in relation to that matter, qualifies for the DSP.
DIAGNOSIS OF THE DISABILITY
The date of the Applicant’s disability is of critical importance.
In the Centrelink letter of 17 February 2017 the Applicant was advised that:
“Although you are considered severely disabled, you were not a resident of either Australia or New Zealand when your severe disability occurred. You were a resident of Malaysia when your medical condition occurred.”[30]
[30] Section 37 Tribunal Documents at [167].
In the first instance it should be noted that, contrary to the Respondent’s contentions before the Tribunal, the decision-maker in this instance accepted that the Applicant was “severely disabled.”
Secondly, there is reference in this determination to two distinct statuses, namely being “severely disabled” and having a “medical condition.” Clearly the two are not the same.
What is there in the evidence?
1.In oral testimony the Applicant’s mother stated that Dan started to show signs of slow learning, developmental delay and some physical disabilities while he was a child living in Malaysia and before he arrived in New Zealand in November 2002. At that stage he was just under seven years of age. It should be noted that this level of disability did not prevent the family being accepted by the New Zealand authorities, to migrate to New Zealand or subsequently acquiring New Zealand citizenship.
2.There is an important reference in the determination of the AAT1 of 27 September 2017 which reads as follows:
“There is some earlier medical evidence before the Tribunal … in the nature of a Medical Certificate for New Zealand dated 10 July 2001 of Dr Chuah Siang of Klang, Malaysia. It is apparently a documents which was required by the New Zealand authorities to satisfy immigration requirements and related to Mr Pillai’s state of health at the time he emigrated to New Zealand. It seems Mr Pillai was in good health as there is no reference to any medical disability.”[31]
[31] Ibid at [238].
Although this document was not before this Tribunal, the AAT1 reference (despite the fact the report is some 15 years old at the time of the DSP application) confirms the Tribunal’s conclusions that the Applicant’s condition was not so “severe” at the time he was granted permission to migrate to New Zealand, or of sufficient concern for the New Zealand authorities to deny him entry on health grounds, and that his condition has deteriorated since his arrival in that country.
1.Dr Burrell, in his report, refers to Dan’s signs of delayed development as being identified at around age six or seven years, although upon arrival in New Zealand he was capable of learning a few words.[32] Importantly, Dr Burrell records that: “He was able to learn a few words, but later regressed and lost the ability to express himself verbally.” [emphasis added]
2.A report from Ms Trisha (a clinical psychologist) concludes that there is insufficient evidence to suggest that any of Dan’s conditions were or are congenital and there is no evidence of any birth-related or post-birth traumas which may have given rise to them.[33] Ms Trisha’s assessment was one based on a review of the files and file notes only and did not include any personal examination or interview with the Applicant.
3.A clinical report from Janet Low (a speech-language therapist) indicates that in August 2016 she had been working with the Applicant in Wellington and that he had made some progress in the use of non-verbal communication tools.[34] Her characterisation of Dan as being “non-verbal autistic” is not a diagnosis.
4.Ms Eirini Lammi (a Registered Psychologist) assessed Dan on 16 August 2018 and conducted a series of recognised formal tests. As already stated, her conclusions were that he scored in the “extremely low range” on a number of these tests. Her conclusion was that Dan “meets the criteria for a diagnosis of an Intellectual Disability, which can be descried as “Severe” in nature.” She reported that Dan’s intellectual disability was severe and permanent and “complicated/impeded by a number of other neuropsychological conditions.”[35]
5.The Applicant’s General Practitioner, Dr Nikki Turner, with specific reference to this application, reported that: “I confirm that Richidan has a severe intellectual disability that was diagnosed in 2004. He is fully reliant on a full-time carer, the condition is life long and not expected to change. He will never be able to enter the workforce. The severe disability occurred in New Zealand (sic). He was given a New Zealand invalids Benefit in 2011 for this condition. He has resided permanently in Wellington, New Zealand since 2002, was granted citizenship in 2006.”[36]
6.The Respondent’s own psychological assessment report of 30 November 2016[37] repeats Dr Turner’s assessment and diagnosis without challenging it. Nothing perhaps should be taken from this, other than the readiness to accept the validity of the diagnoses and not to find it in any obvious way questionable.
7.The Respondent draws attention to a report by the New Zealand Ministry of Social Development which records that; “Client’s incapacity to work occurred outside New Zealand or Australia.”[38] In relation to this, the Tribunal notes that this is not a “diagnosis” of any condition, nor is the “incapacity to work” the same as the acquisition or onset of a diagnosed disability.
[32] Applicant’s Submission: Report of Dr Burrell (17 September 2018) at Tab [2].
[33] Report of Ms Trisha (Health Professional Advisory Unit, Department of Human Services), dated 18 April 2019, attached to the Respondent’s Statement of Facts, Issues and Contentions at Tab [4].
[34] Section 37 Tribunal Documents at [149-150].
[35] Report of Ms Lammi (Adult Intellectual Disability Assessment Report), dated 16 August 2019, attached to the Respondent’s Statement of Facts, Issues and Contentions at Tab [4].
[36] Section 37 Tribunal Documents at [148].
[37] Ibid at [152-153].
[38] Ibid at [178].
As set out above, Article 2(2) of the New Zealand Agreement requires that the applicant for DSP must be resident of one of the parties (and for at least a year before) “at the date they became severely disabled.”
The critical word here is “severely”. The Article does not say words to the effect “when the disability first manifest”, or “when the disability was first apparent”, or “when the disability was presumed to have arisen or occurred”. It also relates to a specific and identified degree of disability – namely being severe.
Dr Burrell concedes that the Applicant’s disabilities would have existed, to some unspecified degree, while he was still a child in Malaysia. He then goes on to say that the Applicant has regressed since his arrival in New Zealand – in other words his condition has become more severe.
There is nothing in any of the other evidence to refute this suggestion.
Dr Turner’s report is the first actual diagnosis of the Applicant’s condition. There are no medical reports from Malaysia and otherwise there are only the observations of his loving mother.
In this respect the Tribunal has regard to the Impairment Tables under which assessments of disability for DSP purposes are made.
·In order for a condition to be awarded points on the Tables it is necessary that any condition be “fully diagnosed; fully treated and fully stabilised.”[39]
·The diagnosis must be made by “an appropriately qualified medical practitioner”.
·Furthermore, there needs to be “corroborating evidence of the condition”.[40]
·Finally, in respect of a DSP application this evidence has to relate to the applicant’s condition during the qualifying period.
[39] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Part 2 section 6(4)
[40] Ibid at Part 2 section 6(5).
As far as the Tribunal can ascertain, the only ”appropriately qualified medical practitioner(s)” who have provided a diagnosis are the specialist neurologists Drs Turner and Burrell, one of whom opines that the “severe” disability first occurred while the Applicant was living in New Zealand and the other reports the regression of the Applicant’s condition during his New Zealand residency. Ms Lammi reports the results of tests but makes no diagnosis of the onset of any “severe” condition and Ms Trisha rules out any causation related to congenital or immediate post-birth conditions occurring in Malaysia.
For these reasons the Tribunal accepts that the Applicant’s “severe” condition was only first diagnosed, for DSP qualifying purposes, in 2004 while he was a resident of New Zealand.
As such, the Applicant satisfies the requirements of Articles 2(2)(b) and 2(2)(c) of the New Zealand Agreement.
The Tribunal’s reading of the requirements in this fashion is reinforced by its consideration of Article 1 of the New Zealand Agreement. Article 1 is concerned with definitions and relevantly provides:
(e) “date of severe disablement” means the date a person who applies for a disability support pension or supported living payment was first assessed as meeting the criteria for a disability support pension or a supported living payment under this Agreement or, where the evidence supports an earlier date, the competent institutions may agree upon an earlier date.” [emphasis added]
“Competent institutions” are then defined as being, in effect, the relevant government departments administering the social security law of each country.
The Tribunal takes the view that the first assessment in this instance means either the date the Applicant was assessed and granted the SLP in New Zealand (2012) or the date upon which he applied for the DSP in Australia, 19 August 2016. There is no evidence that any “competent institutions” have come to a different conclusion and settled on something that could be defined as “an earlier date”.
It is also to be noted that in correspondence to the Australian authorities from their New Zealand counterparts, the latter makes it clear that in making determinations to pay the New Zealand SLP “we do not grant and assess payments on where the disability occurred” and that the Applicant “would still be entitled to SLP while living in New Zealand even though his disability occurred in a 3rd country.”[41] The New Zealand authorities are not saying that this is the case with the Applicant, merely that if it was, he would still be eligible for the SLP.
[41] Section 37 Tribunal Documents at [166].
Given that Article 1 of the Agreement makes it clear that the determinative point is that of first assessment; that Article 6 (see above) provides for an overriding of domestic limitations in favour of rights assessed/granted under the Agreement and that the relevant date is thus the date of the application for the DSP, the Tribunal finds itself in broad agreement with the case set out in the Tribunal Documents by the Applicant’s representative in favour of the Applicant being granted the DSP. [42]
[42] Ibid at [231]-[232].
DISCUSSION
The Respondent has raised a series of objections to the granting of the DSP to the Applicant, each of which the Tribunal rejects.
1.The Respondent contends that the Applicant does not satisfy DSP requirements under either section 94 of the Act or Article 2(2) of the New Zealand Agreement. In each case, for the reasons given, the Tribunal finds to the contrary.
2.The Respondent contends that the Applicant did not meet the residency requirements of the Act. The Tribunal finds that these were met as a result of the Applicant’s totalised period of residency in both countries and as, in effect, conceded by the Respondent.
3.The Respondent questions whether the Applicant’s disabilities are sufficiently severe to preclude the possibility of his undertaking any form of work (including voluntary work) or employment. The Tribunal finds that the Applicant’s severe disabilities preclude any such prospect.
4.The Respondent contests that the Applicant is in fact “severely” disabled. The Tribunal finds that he is and moreover that this concession was made by Centrelink in their original rejection decision.
By meeting the requirements of section 94(1) of the Social Security Act and the relevant provisions (especially Article 2(2)) of the New Zealand Agreement, the Applicant qualifies for the grant of the Disability Support Pension and was so qualified at the time when the application was made and during the subsequent qualifying period.
DECISION
The decision of the Social Services and Child Support Division of the Tribunal made on 5 September 2018 is set aside. The Tribunal determines that the Applicant was eligible for the payment of the Disability Support Pension from the date of claim.
I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd].............................................
Associate
Dated: 11 June 2019
Date(s) of hearing: 28 May 2019 Advocate for the Applicant: Ms S Barkho Solicitors for the Respondent: Dr S Thompson, Department of Human Services
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