RODRIGUEZ And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 448
•16 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 448
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5823
GENERAL ADMINISTRATIVE DIVISION ) Re CRISTINA TERESA RODRIGUEZ Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date 16 June 2010
Place Hobart
Decision The decision under review is affirmed.
.........................................
Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - applicant left Australia to reside overseas - portability limited to 13 weeks - applicant not considered to be severely disabled or terminally ill - decision under review affirmed
Social Security Act 1991, Chapter 4, ss 23(4B), 1217, 1218AA
Guide to Social Security Law (the Guide), ss 1.1.S.110, 3.6.2.20
Drake V Minister for Immigration and Ethnic Affairs (1979) 2 ALD 6
Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983
Trepic v Secretary Department of Family and Community Services [2005] AATA 710
Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983
REASONS FOR DECISION
16 June 2010
Ms A F Cunningham (Senior Member)
1. The applicant, Christina Rodriguez seeks the review of a decision which limited payment of her disability support pension (DSP) to a period of thirteen weeks following her departure from Australia on 25 July 2009 to reside in Uruguay.
2. The hearing was conducted by telephone to Mrs Rodriguez who resides in Uruguay. She was represented by her sister and the Tribunal had the assistance of an interpreter in the Spanish language. Christina Rodriguez gave oral evidence at the hearing. She was cross examined by Brian Sparkes who appeared on behalf of the respondent.
3. Centrelink's decision to limit the payment of DSP was affirmed by the Social Security Appeals Tribunal (SSAT) on 30 October 2009. The reviewable decision found that the qualifying circumstances which would permit payment of DSP for an unlimited period did not exist in Ms Rodriguez's case.
background
4. The following facts as set out in the Secretary's Statement of Facts and Contentions and evidenced in the Section 37 documents (T documents) were not in dispute.
·Mrs Rodriguez was born in Uruguay and arrived in Australia on 26 January 1980.
·Mrs Rodriguez was granted DSP on 31 January 2007.
·Mrs Rodriguez left Australia for Uruguay on 25 July 2009.
·Mrs Rodriguez suffers from a number of ailments and has been diagnosed with chronic severe depression.
5. In around May 2009 Mrs Rodriguez submitted a request to have her DSP continued for an unlimited period while she resided outside Australia on the basis that she is terminally ill. She described her terminal condition as "I want to kill myself". The accompanying Certificate of Medical Condition completed by Dr Alicia Meneghetti described her terminal condition as "major depression, she keeps intending to kill herself. The only moment that she is protected is when she is with her sisters. They live in Uruguay." The certificate was received by Centrelink on 10 June 2009.
6. On 28 July 2009 Centrelink advised Mrs Rodriguez that on the basis that it did not accept that Mrs Rodriguez was terminally ill, her pension for portability to Uruguay was limited to a period of thirteen weeks from her departure date, being 23 October 2009. The decision was affirmed by an Authorised Review Officer on 11 August 2009.
legislation
7. The relevant legislation is contained in the Social Security Act 1991 (the Act) The provisions relating to the portability of certain pensions are contained in Chapter 4 of the Act. As Australia does not have an international social security agreement with Uruguay, the portability rules in the Act apply to her circumstances.
8. Section 1217 of the Act provides that DSP is only portable for a maximum period of thirteen weeks.
9. There are provisions that allow for an extension of the portability period. The relevant one in Mrs Rodriguez's case is Section 1218AA which allows for the portability period for DSP to be extended indefinitely in particular circumstances.
10. Section 1218AA reads:
"(1) The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person’s absence from Australia is or will be permanent; and
(e) the purpose of the person’s absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person’s country of origin.
(2) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(3) If the Secretary revokes the determination, this Part has effect after the first time at which one of the qualifying circumstances does not exist as if the person’s maximum portability period for the pension were 13 weeks starting at that time".
11. It had been conceded by the respondent that paragraph's (b) and (e) are met although Mr Sparkes contended that on the evidence given by Mrs Rodriguez at the appeal hearing, her absence from Australia could not be considered permanent. Mrs Rodriguez stated that if she was unsuccessful with her appeal she would be forced to return to Australia for financial reasons so that she could continue to receive DSP. In her request to have her DSP continued indefinitely, Mrs Rodriguez stated that it was her intention to leave Australia permanently. It could be concluded therefore, that at the time of her departure, it was her intention to reside in Uruguay.
12. The two issues that are in contention are whether Mrs Rodriguez is severely disabled and whether she is terminally ill. Each of the provisions of (a) to (e) are conjunctive which requires that they all be satisfied for a person to qualify for an unlimited portability period.
is mrs rodriguez severely disabled?
13. Section 23(4B) of the Act provides that a person is considered severely disabled if they are totally unable to work for the next 2 years.
"(4B) For the purposes of this Act, a person is severely disabled if:
(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i) to work for at least the next 2 years; and
(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind"
14. The Guide to Social Security Law (the Guide) at 1.1.S.110 clarifies the meaning of "severely disabled" by stating that a recipient is accepted as being severely disabled if their impairment prevents them from doing any work for 8 hours a week or more for the next 2 years and benefiting from training, educational rehabilitation to the extent of being able to work at least 8 hours per week. The definition includes a note that recipients 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.
15. It is appropriate to give consideration to a relevant government policy, in this case the Guide, where it is not inconsistent with the provisions of the relevant legislation (Drake V Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).
16. The only evidence as to Mrs Rodriguez's work capacity is the Job Capacity Assessment Report which was completed in February 2007, and a note from her psychiatrist stating that Mrs Rodriguez is unable to "job seek as social circumstances are dire". The report is dated 31 January 2007, being the date from which she was granted DSP.
17. The issue is whether Mrs Rodriguez was severely disabled when she claimed qualifying circumstances for the purpose of being granted unlimited portability.
18. Whilst the social security legislation does not impose a burden of proof on a party to an application for a review to the Tribunal, the Tribunal can only make its decision on the evidence before it. In a review by this Tribunal, the applicant is afforded a hearing de novo and a determination on the basis of all of the evidentiary material placed before the Tribunal. If the applicant does not take advantage of the opportunity to produce additional relevant evidence, the Tribunal can only make its decision on the basis of the material produced to the previous decision makers.
19. In this case Mrs Rodriguez has supplied no relevant material regarding her capacity to work and the classification of severely disabled as it is referred to in the Act and explained in the Guide.
20. The Job Capacity Assessor considered that Mrs Rodriguez had a current and future work capacity of eight to fourteen hours per week. Although the report is dated 2007, her future work capacity within two years is stated at between eight and fourteen hours per week with and without intervention. The report contains a comprehensive assessment of her medical ailments and recommends a further review in twenty four months. The report suggests that Mrs Rodriguez's job capacity would continue at that level for a period of two years which is just some months prior to her departure from Australia and her request for an extension of the portability period.
21. On the basis of this evidence the Tribunal is not satisfied on the balance of probabilities that Mrs Rodriguez is severely disabled within the meaning of the Act.
is mrs rodriguez terminally ill?
22. The term "terminally ill" is not defined in the Act. The Guide's reference to "terminal illness" at 3.6.2.20 with reference to "manifest inability to work" speaks of a "terminal illness" being where the condition is terminal and LIFE EXPECTANCY IS 24 MONTHS OR LESS.
23. Senior Member Handley in Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983 considered the term and said:
"11.
The words "terminally ill" are not defined by the Act. The Social Security Guide refers to a life expectancy of 24 months or less as an aid to interpreting these words. Professor J H Maynard, a former member of this Tribunal – being a medical practitioner and pathologist – adopted the Shorter Oxford English Dictionary meaning of these words as "last stages of a fatal disease", (refer Re Toseska and Secretary, Department of Family and community Services [2005] AATA 386 at paragraph 20).
12.
I think that is an appropriate definition. The words "last stages" are referable to the word "terminal". The "fatal disease" is the "illness". Fortunately, these words do not apply to Mr Foster. It would appear that he has made a good recovery from his cerebral haemorrhage, although being left with limitations".
24. Mrs Rodriguez's general practitioner diagnosed her with major depression. In her Certificate of Medical Condition Dr Meneghetti answered "yes" to the question "does the patient have a terminal condition with a prognosis of less than twenty four months" on the basis that Mrs Rodriguez "keeps intenting (sic) to kill herself". Dr Meneghetti went on to state, "the only moment that she is protected when she is with her sisters. They live in Uruguay."
25. In her report of 9 July 2009 Dr Meneghetti states that Mrs Rodriguez has had multiple suicide attempts and it is her opinion and experience that:
"over a period of time and given the right circumstances that Christina will succeed with her plan. I sincerely think that the only way to help her and her family is for her to live with her sister and mother in Uruguay. I consider this illness as a terminal, as is going to finish with her life."
26. Mrs Rodriguez's treating psychiatrist, Dr Tsang has advised that he does not consider her condition to be terminal. In his undated letter to Dr Meneghetti he states that Mrs Rodriguez took an overdose in May 2003 and a second in April 2004 following a separation from her husband. He stated that he had made a "no suicide attempt" contract verbally with Mrs Rodriguez and provided her with a phone number of the Fairfield Mental Health Team. In his letter to Dr Meneghetti of 19 June 2009, Dr Tsang refers to Mrs Rodriguez's last two suicide attempts which he said "appeared to be impulsive with no fore thought or planning."
27. In the SSAT's decision it is recorded that Mrs Rodriguez informed the Tribunal that she had not attempted suicide while in Uruguay but that if she is denied the pension and forced to return to Australia she would "throw herself under a train." The Tribunal referred to earlier suicide attempts in October 2008 when Mrs Rodriguez had taken an overdose of tablets and been hospitalised and another in February 2009 which had not resulted in hospitalisation.
28. In her application for review to the AAT Mrs Rodriguez states that she had tried to commit suicide two times since arriving in Uruguay and three times since receiving the SSAT's decision of 30 October 2009.
29. When I asked Mrs Rodriguez during the hearing whether she had attempted suicide in Uruguay she said that she didn't specifically recall but believed she had on two occasions and suggested that her sister would have a better recollection. There was evidence from Mrs Rodriguez and her sister that the suicide attempts had been in around March, April or May of this year but neither was able to give the Tribunal any details of the suicide attempts. A translated hospital report refers to a hospitalisation following a suicide attempt by using psycho-pharmaceuticals in April 2010. Mrs Rodriguez was discharged after five days and the report states, "she developed well and fully rectified the suicidal intent". Mrs Rodriguez said that she had consulted a psychiatrist whilst in Uruguay by the name of Dr Carina Nova who she initially consulted in December 2009 and now sees on a monthly basis.
Consideration
30. Mrs Rodriguez's diagnosed condition is depression. The SSAT noted that depression in itself is not a terminal illness but considered whether depression with suicidal ideation and suicide attempts could be categorised a terminal illness. After considering the evidence, the SSAT concluded that the history of Mrs Rodriguez's suicide attempts did not support a finding that she had a life expectancy of less than two years.
31. Mr Sparkes submitted that the condition from which Mrs Rodriguez suffers is depression and that any suicidal ideation should be considered a symptom of the condition and not an element of the diagnosis. A suicide may be the consequence of the depression and it may also be a consequence of a non-terminal illness such as paraplegia. A suicidal ideation does not make the paraplegia a terminal illness. As the Tribunal noted in Trepic v Secretary Department of Family and Community Services [2005] AATA 710 at paragraph 21: "the applicant suffers from significant depression on polio arthritis which is not a terminal illness."
32. The evidence was that with assistance and support Mrs Rodriguez's depressive condition may improve. Although this was expressed on the basis that she continue to reside in Uruguay with family support, I consider that it is an indication that her condition is not terminal or suggestive of a life expectancy of less than two years.
33. I prefer the evidence of Dr Tsang, a Consultant Psychiatrist to that of Mrs Rodriguez's treating General Practitioner. Dr Tsang advised Mrs Rodriguez prior to her departure from Australia that he did not consider her condition to be a terminal illness.
34. Although the consequence of this decision may be that Mrs Rodriguez is forced to return to Australia in order to continue to receive DSP which will mean that she will not longer have the family support that she currently enjoys, her return to Australia will mean that her financial position will improve. Mrs Rodriguez's two adult children are also residing in Sydney Australia and are hopefully able to offer her some familial support. Whilst it might be Mrs Rodriguez's preference to remain in Uruguay with her mother and sister, unless she meets the required provisions for unlimited portability of DSP, payments cannot be continued while she resides out of Australia.
35. For the above stated reasons I am not satisfied that Mrs Rodriguez is severely disabled or is terminally ill within the meaning of Section 1218AA. I accordingly affirm the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: M Brereton (Administrative Assistant)
Date/s of Hearing 3 June 2010
Date of Decision 16 June 2010
Representative for the Applicant Ms M Bebekacqua
Solicitor for the Respondent Mr B Sparkes, Centelink Advocacy Branch
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