Sahyoun and Secretary, Department of Family and Community Services

[2005] AATA 706

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 706

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/165

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AMAL SAHYOUN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

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

Date27 July 2005

PlaceHobart

Decision The decision under review is affirmed.

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

Part-Time Member

CATCHWORDS

Social Security - wife pension - disability support pension (DSP) - whether applicant severely disabled - overseas residence (Lebanon) - portability of pension - period of portability - medical evidence - obsessive compulsive disorder - back pain medical costs - financial difficulties - place of residence - frequency and duration of travel to Australia - ties to Australia - Social Security Appeals Tribunal (SSAT)

Social Security Act 1991 ('the Act') Sections 7 and 94(1)(b&c)

Guide to Social Security Law

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

Re Drake No 2 (1979) 2 ALD 634

Hafza & Director-General of Social Security (1985) 6 FCR 444

Re Mengi & Director-General of Social Security (1984) 22 SSR 254

RSDFCS and Papagiannis (1999) 56 ALD 765

Kavedas & SDFCS (2004) AATA 1260 (28 January 2004)

Rutledge & SDFCS (2004) AATA 903 (27 August 2004)

REASONS FOR DECISION

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

DECISION UNDER REVIEW

1.      The decision under review is a decision by Centrelink dated 21 July 2004 to reject the applicant’s claim for Disability Support Pension (DSP).

THE ISSUE

2. Did the applicant satisfy Section 94(1) of the Social Security Act 1991 (‘the Act’) at the date of claim or within 13 weeks?

STANDARD OFPROOF

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

LEGISLATION

4.      The relevant legislation is the Social Security Act 1991, Sections 7 and 94 (1) (b and c). The Guide to Social Security Law should also be noted.

BACKGROUND

5.      The applicant, Mrs Amal Sahyoun was born in Lebanon on 4 January 1961 and moved to Australia in November 1991.  She was granted a wife pension from August 1992, but in February 1996 returned to Lebanon and has resided there ever since.

6. Since returning to Lebanon she continued to receive wife pension, returning to Australia every twelve months to maintain eligibility for social security benefits under portability provisions specified in Section 94(1) of the Social Security Act 1991. Her last visit was from 18 January 2004 to 23 January 2004.

7.      From 1 July 2004 portability limits were changed so that an applicant would receive pension for a period of only thirteen weeks after leaving Australia, unless special circumstances applied.  Mrs Sahyoun was advised of this situation, but had lodged an application for disability support pension (DSP) on 3 March 2004.  Centrelink advised the applicant on 21 July 2004 that the claim was rejected.  This decision was affirmed by an Authorised Review Officer (ARO) on 18 October 2004 and on 21 December 2004 the Social Security Appeals Tribunal (SSAT) also affirmed the initial decision.

8. In applying for DSP Mrs Sahyoun indicated she suffers from obsessive compulsive disorder and low back pain. Both conditions began about three years ago (2002). Because she did not become unable to work while residing in Australia, the Act requires ten years of qualifying residency before her claim for DSP could be contemplated. Her actual period of residency in Australia was November 1991 to February 1996, far less than ten years.

9.      Mrs Sahyoun decided on 30 December 2004 to lodge an application for review by the Administrative Appeals Tribunal.

THE AAT HEARING

10.     An international telephone hearing of the case was conducted on 5 July 2005.  The applicant had decided to represent herself, but then added her husband as witness.  She had the benefit of a translator competent in Lebanese.  The respondent was represented by Mr Brian Sparkes.

11.     Mrs Sahyoun was affirmed and invited to describe her medical condition, dealings with Centrelink and any new evidence she may have possessed.  She indicated she had experienced back problems, high blood pressure, but now had been diagnosed with an obsessive compulsive disorder, involving dizziness, nervousness and periods of crying.  She was also worried about the parlous financial condition of her and her husband.  Lebanon had proven far more expensive than they had anticipated and she could not now afford medicines or to educate their twin children.  They had relied upon wife pension from Australia and the portability for this had been reduced to 13 weeks.  Her ongoing illness had persuaded her to seek Disability Support Pension (DSP) but this had now been refused.

12.     She claimed to have visited Centrelink several times with her husband, prior to the final decision to leave Australia, seeking reassurance their pensions would be ongoing.  She claims they were told it would continue and they should ‘be happy and clear their minds of worry’.  Now they were dismayed by the change in portability limits and refusal to grant DSP, feeling they had been betrayed.

13.     At this stage of proceedings Mr Marcel Sahyoun commenced interjecting and after being affirmed as a witness with his wife’s consent, animatedly argued they had been lied to about continuation of pension after leaving Australia and were now nearly bankrupt because the loss of pension meant they could not live in such an expensive city as Beirut.  The reduction of pension portability period meant they could not afford to return to Australia every 13 weeks in order to retain eligibility.

14.     Counsel for the respondent was sympathetic to their plight, but Centrelink was bound to apply the law.  The applicant could return to Australia, but in terms of a claim for DSP she had not demonstrated a continuing inability to work and did not possess ten years residency in Australia as a prerequisite.  The decision under review should therefore be affirmed.

ANALYSIS

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

16.     As previously noted, Mrs Sahyoun was in receipt of wife pension prior to leaving Australia and prior to her application for DSP dated March 2004, returned to Australia annually for a few days to meet portability requirements.  She and her husband have no remaining assets in Australia.  New pension portability requirements limit payment to 13 weeks absence from Australia and the limit applies both to wife pension and DSP.  She was not in a position to claim she had severe disability prior to leaving Australia.

17. Section 94(1) of the Social Security Act 1991 sets out the qualification criteria for Disability Support Pension (DSP):

“A person is qualified for disability support 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 continued inability to work

(ii) .....

(d)       the person has turned 16;  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

(iii) ......”

18. Section 94(2) of the Act states that a person has a continuing inability to work if the Secretary is satisfied that:

“(a)      the impairment is of itself sufficient to prevent the person from any work within      the next two years;  and

(b)       either:

(i)  the impairment is of itself sufficient to prevent the person from undertaking      educational or vocational training or on the job training for next 2 years;  or

(ii) ... such training is unlikely to enable the person to do any work within the         next two years”

19.     Mrs Sahyoun’s disabilities may now be substantial, but the available medical evidence from Dr Youseff (27 February 2004) and Dr Kmeir (29 June 2004) note problems of the lumbar spine and an obsessive compulsive disorder but do not confirm  she was severely disabled at the time of leaving Australia.  The dates of onset are not identified, but according to the treating doctors appear to have commenced around 2002, when she was already living in Lebanon.  There is no confirmed evidence about inability to work, but the key point is that she fails to meet the residency requirement of ten years in Australia before departure for Lebanon.

20. Section 7(5) of the Act sets out the criteria for being a qualified Australian resident and this not only includes a requirement about the period of actual residency, but a number of other factors, such as the nature of any assets located in Australia, the kind of accommodation used, the nature of any family relationships and the extent of any employment, business or financial ties. The Sahyoun’s admit they have no assets here and their place of residency is Lebanon. While a person may reside in Australia and not be physically present in certain circumstances, annual visits of a few days per year cannot be regarded as Australian residency for the purpose of social welfare benefits.

21.     Support for this contention is found in a number of prior AAT decisions identified by counsel for the respondent.  See, for example, Hafza and DGSS (1985) 6 FCR 444, SDFCS & Papagiannis (1999) 56 ALD 765 and Kavedas & SDFCS (2004) AATA 1260. All indicate that a close and ongoing relationship with Australia, meeting criteria specified in Section 7(3) of the Act, is required before it can be argued Australian residency exists. The applicant resided in Australia between November 1991 and February 1996, far less than the ten years required and has only visited for a few days per year since, thus she fails to meet the criteria of residency specified in Section 94(1) (c) (i) of the Act.

22.     To summarise, the applicant Mrs Amal Sahyoun fails to meet the criteria for Disability Support Pension on two grounds:

(a) she was not severely disabled or had a demonstrated inability to work within the meaning of Section 94(2) of the Act at the date of departure from Australia; and

(b) she fails to meet the ten years of residency criterion specified in Section 94(1) (c) of the Act.

Her appeal against the Centrelink decision of 21 July 2004 therefore fails.

DECISION

23.     The Tribunal has some sympathy for the difficult situation Mrs Sahyoun faces, but the Tribunal has no power to do other than apply the law as it stands.   The decision under review is therefore affirmed.

24.     Both Mr and Mrs Sahyoun made repeated claims they had been advised before leaving Australia that their pension would continue even if the law changed.  It appears likely they may have misinterpreted what they were told, but the Tribunal would suggest Centrelink investigate whether any defective administration was involved and whether any ex-gratia compensation should be considered.

DECISION

25.     The decision under review is affirmed.

I certify that the 25 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  5 July 2005
Date of Decision  27 July 2005
Counsel for the Applicant         Applicant on her own behalf
Counsel for the Respondent     Mr B Sparkes, Centrelink Legal Services