Reissis and Secretary, Department of Family and Community Services

[2005] AATA 702

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 702

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/22

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ELENI REISSIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Assoc Prof B W Davis AM (Part-time Member)

Date 25 July 2005

PlaceHobart

Decision

The decision under review is set aside and in substitution thereof the Tribunal finds that:
(a) the applicant Eleni Reissis was severely disabled as defined in Section 23 (4B) of the Social Security Act 1991 when she departed Australia on 29 June 2004; and

(b) under portability provisions of Sections 1215 and 1217 of the Act she is entitled to ongoing DSP benefits from that date.

..............................................

Part-Time Member

CATCHWORDS

Social Security - disability support pension - whether applicant severely disabled - overseas residence (Greece) - portability of pension - period of portability - medical evidence - deafness - depression with melancholia - hypertension with palpitations - pain after breast operation - prolapse - varicose veins - neck and back pains - migraine - part-time employment (Australia) - Social Security Appeals Tribunal

Social Security act 1991, Sections 23 (4B), 1217 (4)

Guide to Social Security Law

Secretary DFCS and Tsakrios (1994) AATA 9313

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

Re Drake (No 2) (1979) 2 ALD 634

Re Bourboulas and SDSS (1997) AATA 12045 (27 July 1997)

Walsh and SDFCS (2002) AATA 881 (4 October 2002)

Re Blundell and SDSS (1998) 3(5) SSR 50

Re Vrdoljak and SDFCS (2000) AATA 629 (1 August 2000)

REASONS FOR DECISION

25 July 2005 Assoc Prof B W Davis AM (Part-time Member)

1.      The decision under review is a decision made by a Centrelink officer on 9 August 2004 to consider Mrs Reissis as not being severely disabled under Section 23 (4B) of the Social Security Act 1991 (the Act’) at the time she left Australia. As a consequence she could only receive Disability Support Pension (DSP) for 26 weeks after she departed Australia.

ISSUES

2.      The principal issues are:

(a) was the applicant severely disabled, as that term is defined in the Social         Security law at the time she departed Australia;  and

(b) if the answer to the above is no, then what is the applicant’s portability period under the social security law?

LEGISLATION

3.      The relevant legislation is the Social Security Act 1991, especially Sections 23 (4B) and 1217 (4). Note also the Guide to Social Security Law.

STANDARD OF PROOF

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

BACKGROUND

5.      The applicant Mrs Eleni (Helen) Reissis was born on 23 August 1947 and arrived in Darwin, Australia, to be married on 11 October 1966.  She became an Australian citizen on 26 January 1971, by which time she had three children born in Darwin.  After the birth of a child in 1972 she commenced having melancholy-panic attacks, high blood pressure and palpitations and a number of other significant medical problems, which she claims have persisted and grown worse over time, so that she is now fully incapacitated.  She claims that at her present level of income she cannot afford the many medications she requires.

6.      Mrs Reissis was in receipt of disability support pension (DSP) from 2 March 2002 until the time of departure from Australia on 29 June 2004.

7.      In May 2004 Mrs Reissis informed Centrelink that she would be going overseas and did not intend to return, as she could not cope with the climate of Darwin or Mt Isa.  She was advised by Centrelink she would only receive DSP for a period of 26 weeks because she was not severely disabled.  She had been working part-time at a food store since late 1999 for up to 20 hours per fortnight and ceased work on 6 May 2004 advising Centrelink on 13 May 2004.  On 29 June 2004 Mrs Reissis left Australia for Greece and has not returned.  DSP was cancelled 26 weeks after the applicant left Australia, in accordance with the law.  Mrs Reissis currently resides in Kalymnos, Greece, with her daughter.

8.      On 23 August 2004 Mrs Reissis sought a review of the decision not to regard her as severely disabled.  On 9 August 2004 a Centrelink Disability Officer had affirmed the decision to cancel the applicant’s pension on the basis she was not severely disabled at the time of departure from Australia and only entitled to 26 weeks DSP portability.   The decision was further affirmed by an Authorised Review Officer (ARO) on 13 September 2004.

9.      The matter was further considered on appeal to the Social Security Appeals Tribunal (SSAT) on 9 February 2005.  The Tribunal accepted medical evidence that Mrs Reissis was no longer able to continue working, but was unable to find that at the date of her departure from Australia to Greece she was severely disabled.  the Tribunal therefore affirmed the decision under review ie that portability of the DSP pension was limited to 26 weeks.

10.     On 28 February 2005 Mrs Reissis filed a letter of complaint about the SSAT decision and appealed the matter to the Administrative Appeals Tribunal for review.

THE AAT HEARING

11.     A telephone hearing of the case was conducted between Hobart, Australia and Mykonos, Greece on the afternoon of Tuesday 28 June 2004.  The applicant was self represented but had the assistance of a qualified translator;  the respondent was represented by Mr Brian Sparkes.

12.     After being affirmed the applicant was invited to state her case, including any further medical information or other relevant factors.  She indicated that her condition had worsened after leaving Australia, but she was already incapacitated at that time.  She claimed that it was illness which had induced her to cease working on 6 May 2004, rather than a decision to leave Australia in late June 2004.  She indicated her current income did not permit her to purchase all the medications she required and this was the reason her condition had worsened following return to Greece.  She stated that her husband had his own medical problems and was now living with his sons, while she resided with her daughter.

13.     When asked to describe the disabilities she faced, she indicated she had suffered from chronic depression, melancholia and severe panic attacks since 1972, but also suffered hypertension with palpitations, arthritis of the neck and back, severe prolapse, migraines with strong headaches, varicose veins in both legs and deafness of the left ear.  In order to cope with these mental and physical problems she was taking up to nine medications a day when she could afford them.

14.     She indicated she had low qualify of life and needed support.  She regarded Australia as a fine country and felt sure it would not let her down at this time of need.

15.     Under cross-examination she again blamed disabilities for forcing her to cease part-time employment in May 2004.  There had been a decision to return to Greece soon after, but this did not occur until 29 June 2004.  The timing was dictated by the need for her daughter to travel with her to provide support.

16.     The applicant also reiterated her claim that she was incapacitated at the time of leaving Australia, but considered her health had continued to deteriorate in part from concerns about lack of income to purchase essential medications which she now was unable to afford.  She had not pursued further medical examinations for the same reason.

17.      When questioned about her health problems she said it was more about high blood pressure and palpitations than acute heart disability.  She was unable to provide an estimate of the expenditure on medications in Australia and Greece since this varied over time according to prescriptions and her capacity to afford items at a particular date.

18.      She was questioned about sources of income and indicated she had little money; her husband was getting an Australian pension, but also had medical problems himself and could not really afford to support her.  They were largely reliant upon family assistance.

19.      In closing comment she thanked the Tribunal for hearing her case; the situation had been clearly documented and she relied upon the Australian Government to honour her plea for assistance.

LEGISLATION

20. Provisions concerning Disability Support Pension (DSP) are set out in Sections 23 (4B), 1215 and 1217 of the Social Security Act 1991 (the Act) and Section 1.1.5.110 of the Guide to Social Security Law.

21. Section 23 (4B) of the Act states that a person is severely disabled if the applicant:

(a)       has a physical, psychiatric or intellectural impairment, or 2 or all of these impairments, which make the client:

(i)        totally unable to work for at least the next two years;

(ii)       unable to benefit within the next two years from participation in   a program of assistance or a rehabilitation program

OR

(b)       is permanently blind

23.      An applicant is accepted as being severely disabled if their impairment prevents them from:

(a)       doing any work for 8 hours or more for the next two years, or

(b)       benefiting from training, education or rehabilitation to the   extent of being able to work at least 8 hours per week

24.      The Guide to Social Security Law at 1.1.5110 makes it clear that persons who have been accepted as having a manifest inability to work are not necessarily severely disabled.  The critical matter is the severity of the condition.  Individuals who have a terminal illness such as HIV (AIDS);  a severe degenerative neurological conditions or severe disabilities as a result of head injuries, may be accepted as being severely disabled without a medical examination.   Those who receive a special rate of pension from the Department of Veterans’ Affairs (DVA) may also be regarded as severely disabled.

25. Part 4.2 of the Social Security Act 1991 (‘the Act’) contains the rules relating to overseas portability of pensions. Section 1215 states that if the portability period is not an unlimited period, then the person can continue to receive their payments during the portability period, but thereafter the payments cease. If there is a situation of unlimited maximum portability period, then payments continue.

26. Section 1217 of the Act defines the maximum portability period for an individual with specific disabilities, absent temporary or permanent from Australia. Section 1217, as it was on 29 June 2004 when Mrs Reissis departed Australia, stipulates that disability support pension (DSP) has an unlimited portability period in the case of a severely disabled person and a portability period of 26 weeks in the case of a person that is not severely disabled. Therefore to determine the maximum portability period for the applicant it is necessary to determine whether or not she was severely disabled as at 29 June 2004, the date of her departure overseas.

ANALYSIS

27.      The Tribunal is required to conduct a de-novo review, standing in the shoes of the original decision-maker and considering all evidence anew, taking into account statutory and policy provisions and any relevant prior case determinations.

28.      Mrs Reissis claims her decision to cease part-time work in May 2004 was because of medical disabilities of diverse kinds and a recognition she could not cope with the Australian tropical climate.  She indicates this decision was made prior to a decision to return to Greece and departure at the end of June 2004.  Centrelink has taken a different perspective, arguing that cessation of employment was related to travel plans and the client was not severely disabled at the time of departure, or at least she had not been able to demonstrate any medical evidence of severe disability at that time.

29.      There are treating doctors reports from Dr Lola Power of Mt Isa dated 24 May 2000, 22 September 2000, 11 July 2001, 30 March 2002 and 24 May 2004.  These identify Mrs Reissis’ disabilities as severe chronic depression, with melancholia and panic attacks, hypertension with palpitation and deafness.  Other maladies include arthritis in neck and back, migraines with dizziness and vomiting, varicose veins in both legs, plus a severe prolapse.  There are no dates of onset identified for some of these disabilities, detailed in a letter from the applicant dated 25 October 2004, Kalymnos, Greece.

30.      In addition to the above there are further medical reports from Dr Robert Morgan (Mt Isa) dated 2 May 2003, identifying severe degenerative facet joint disease but hips well maintained.  Translated medical reports from Dr I Patellis, Orthopaedic Surgeon, Athens University and Dr G Kalikatzaros, Radiologist, Kalymnos, Greece, 21 September 2004, note spondylarthritis with curvature to the left.

31.      Dr Lola Powers’ initial medical report, dated Mt Isa, 29 September 2000, identified deafness but also severe depression, with some prospect of a return to work of at least 8 hours per week within two years (Mrs Reissis was in part-time work at the time).  A further report dated 11 August 2001, also identified an ability to work 8 hours per week.  From here the situation deteriorated rapidly, with a report dated 30 March 2002 noting long-term chronic depression and an ability to do 8 hours of work within two years.  A report dated 24 May 2004, prior to her departure from Australia to Greece noted an inability to do any work, but identified previous part-time employment of up to 12 hours per week (Mrs Reissis had ceased work on 6 May 2004).

32.      The decision of an Authorised Review Officer (ARO) dated 13 September 2004, affirming the initial decision of 9 August 2004, was based on a judgement the applicant was not severely disabled at the time of leaving Australia, as she had admitted working up to 20 hours per fortnight until May 2004.  Neither the initial decision-maker or the ARO appear to have probed whether Mrs Reissis was only capable of working because of heavy medication or why she had sought and later given up part-time employment.

33.      The Social Security Appeals Tribunal (SSAT) traversed much the same ground as earlier assessors, but in a slightly more cautious decision, found they were unable to decide Mrs Reissis was incapable of working eight hours per week.  They therefore affirmed the decision under review on 9 February 2005.

34.      But now a paradox arises, with the applicant’s medical practitioner claiming in late May 2004 the applicant was no longer capable of work and the applicant reaching the same conclusion on 6 May 2004, but all authorities making judgements on the basis of part-time employment prior to these dates.  Mrs Reissis has given evidence it was Centrelink, Mt Isa, which advised her part-time employment might prove useful in helping meet the costs of high medication and restore her self esteem.  She claims work was difficult, given her physical and psychological condition nonetheless she persevered until a combination of significant disabilities, side-effects of multiple medication and tropical climate forced her to cease employment on 6 May 2004 and decide to return to Greece, where she hoped different surroundings might restore some wellbeing.  Unfortunately this has not proven the case, as her disabilities preclude employment and the cost of medicines are such that she cannot always afford treatment.  For this and other reasons her situation has worsened rather than improved.

35.      Centrelink has argued a distinction must be drawn between inability to work and being severely disabled, the test for the latter being more stringent, quoting two AAT decisions to support their contention.  In Re Department of Social Security and Tsakrios (1994) 79 SSR 1154 the Tribunal noted that although the applicant’s physical impairment was disability enough to qualify her for DSP, it was not so severe that she was totally incapable of undertaking any part-time work.  In Re Bourboulas & Secretary, Department of Social Security (1997) AATA 12045, 27 July 1997, it was decided an applicant was not severely disabled as she was able to do part-time work or benefit from rehabilitation.

36.      The Tribunal acknowledges that a distinction may be drawn between two levels of disability or impairment, but in some instances it is a narrow line indeed.  The respondent claims there is no medical evidence to confirm the applicant was severely disabled at the date of leaving Australia (29 June 2004), but it is unreasonable to assume she had to demonstrate this, when she had been in receipt of DSP for several years and probably assumed it would continue now there was an ongoing inability to work.  The Tribunal has not found any evidence she was warned about the situation prior to leaving Australia although this may have occurred.  The first firm indication of prospective cancellation of pension appears to have arisen in August-September 2004 when she was already in Greece.

37.      Even if she was advised about limits to portability of pension in June 2004, there is still the issue of her medical condition at the time, relative to statutory provisions and guidelines.

38. As previously noted, Section 23 (4B) of the Social Security Act 1991, sets out the criteria for determining whether an applicant is severely disabled. The basic provisions are there must be significant impairments of a specified kind which render the person unable to work for at least two years or benefit from a program of assistance or rehabilitation. The applicant, Eleni Reissis meets these criteria on the basis of medical evidence from 24 May 2004 onwards, prior to leaving Australia on 29 June 2004.

39.      Section 110 of the Guide to Social Security Law uses the same criteria ie impairment preventing an applicant doing any work for 8 hours per week or more during the next two years and failure to benefit from training or rehabilitation within two years.  Severity of condition is mentioned, as well as exemption from medical examination for severe disabilities of various kinds, but there is no prescribed requirement that all other welfare recipients must undergo a medical assessment prior to leaving Australia.

40. Sections 1215 and 1217 of the Act deal with portability criteria and portability periods for various kinds of social security benefits. In the case of disability pension the applicant was entitled to a portability period of 26 weeks (now 13 weeks) if she was not severely disabled as at 29 June 2004, but ongoing DSP if she was and is severely disabled.

41. The Tribunal has not found it easy to make a determination in this case, given sound evidence from both parties, but after reassessing all available information, has reached a conclusion that Mrs Eleni Reissis meets the criteria specified in Section 23 (4B) of the Act, ie on the balance of probabilities she was severely disabled at the date of departure from Australia (29 June 2004). It follows that the applicant’s maximum portability period for DSP payment was and is unlimited under existing statutory arrangements.

DECISION

42.      The decision under review is set aside and in substitution thereof the Tribunal finds that:

(a) the applicant Eleni Reissis was severely disabled as defined in Section 23 (4B) of the Social Security Act 1991 when she departed Australia on 29 June 2004;

(b) under portability provisions of Sections 1215 and 1217 of the Act she is entitled to ongoing DSP benefits from that date.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Assoc Prof B W Davis AM (Part-time Member)

Signed:   R Hunt (Administrative Assistant)

Date/s of Hearing  28 June 2005
Date of Decision  25 July 2005
Counsel for the Applicant         Applicant on her own behalf

Counsel for the Respondent     Brian Sparkes, Centrelink Legal Services