Schembri and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1387

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1387

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/188

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN SCHEMBRI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date29 May 2007

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension - eligibility - resident in Malta - heart problems - depression - medications - psychiatric condition - impairment rating - inability to work - Social Security Appeals Tribunal (SSAT)

Social Security Act 1991 and Amendments, especially Section 94 and Schedule 1B - Tables for the Assessment of Work-Related Impairment for Disability Support Pension

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999, Schedule 6, Agreement Between Australia and Malta on Social Security

Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Schedule 1B of the Act)

Sayan and SDFCS (2001) AATA 950

Reissis and SDFCS (2005) AATA 702

Bantick & SDFCS (2003) AATA 472

Ellul & SDFCS (2006) AATA 488

Giddings and SDFCS (2003) AATA 893

SDSS v Pusnjak (1999) 56 ALD 444

McDonald & DGSS (1984) 6 ALD 6  

REASONS FOR DECISION

29 May 2007 Associate Professor B W Davis AM (Part-Time Member)   

Decision under Review

1.      The decision under review is a decision made by the Social Security Appeals Tribunal (SSAT) on 31 August 2005, affirming an earlier Centrelink decision of 4 November 2004, refusing disability support pension (DPP) payment to the applicant, Mr John Schembri.

Issues

2.      The Tribunal is required to determine:

(a)      whether Mr Schembri has a physical, intellectual or psychiatric        impairment of 20 points or more under the Impairment Tables in the Social      Security Act 1991; and if so

(b)      does he have a continuing inability to work?

If answered in the affirmative, he would qualify for disability support pension.

Legislation

3.        The relevant legislation is as follows:

·Social Security Act 1991 and Amendments, especially Section 94 and Schedule 1B - Tables for the Assessment of Work-Related Impairment for Disability Support Pension

·Social Security (Administration) Act 1999

·Social Security (International Agreements) Act 1999, Schedule 6 - Agreement Between Australia and Malta on Social Security

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, Mr John Schembri, resides in Malta and on 19 August 2004 lodged a claim for disability support pension (DSP) with the Maltese Department of Social Security, seeking Australian disability support pension on the basis of prior Australian residency.

6.        On 5 November 2004 a Centrelink officer rejected Mr Schembri's claim and following a request for review further medical evidence was sought, but on 28 January 2005 the original decision-maker concluded the initial decision was correct.

7.        The Secretary of the Friends of Australia Association, Malta, sought review by an authorised review officer (ARO), who on 24 March 2005 also affirmed the decision.  He accepted that Mr Schembri suffered ischaemic heart disease and depression, but decided there was insufficient medical evidence to allocate an impairment rating, thus the application failed.  The Friends of Australia Association, Malta, then sought review by the Social Security Appeals Tribunal, which on 31 August 2005 again affirmed the decision.  In other words, they decided Mr Schembri was not qualified to receive Australian disability support pension.  The applicant then applied for de-novo review by the Administrative Appeals Tribunal (AAT),

The AAT Hearing

8.        After some delay in seeking further medical opinion the AAT hearing was conducted in Hobart on 9 May 2007.  Mr Schembri was in Malta and gave evidence by phone, with an interpreter provided in Australia.  Mr Brian Sparkes appeared for the respondent DEWR.

9.        Mr Schembri was affirmed and invited to present his case.  He outlined his disabilities and efforts to treat them, but stressed his low income prevented some treatment options.  He had not undergone heart surgery, but following medication trials his condition had improved and seemingly stabilised, although some concerns remained, since his brother had died of heart failure at age 58.

10.      Mr Schembri said his depression was ongoing, despite periodic treatment;  his doctors said 'it was all in his mind'.  They supplied tablets, varying the medication over time, but had not tried psychological therapy because there were not many specialist services of this kind in Malta.

11.      Under cross-examination it became clear Mr Schembri had made a fresh application for DSP in 2006, but he still failed to qualify.  In closing submissions Mr Sparkes for the respondent said the crucial period to address was the time of application and 13 weeks thereafter ie 19 August 2004 to 18 November 2004.  The overwhelming evidence was that Mr Schembri's disabilities were not fully identified, treated and stabilised at that time, thus he failed to qualify for DSP, with no clear proof of ongoing inability to work as well.

Analysis

12.      The Tribunal is required to conduct a de-novo review, considering all available evidence, relevant statutory and policy provisions and any prior similar case determinations.

13.      There is an international agreement between Malta and Australia concerning social security payments and Mr Schambri's application for Australian DSP must be treated as if he is an Australian resident, subject to Australian law.  (Section 29 of the Social Security (Administration) Act 1999 and Article 5 of the Agreement).

14. In order to qualify for disability support pension the applicant must meet provisions of Section 94 of the Social Security Act 1991, ie:

"94.(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;

(c) one of the following applies:

(i) the person has a continuing inability to work;

(ii) the Health Secretary has informed the Secretary that the person is                 participating in the supported wage system administered by the Health                Department, stating the period for which the person is to participate in               the system; and

(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, 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

Note 1:    For 'Australian resident', 'qualifying Australian residence' and 'qualifying residence exemption' see section 7.

Note 2:    for Impairment Tables see section 23(1) and Schedule 1B.".

15.      The two key criteria are an impairment rating of 20 points or more and an ongoing inability to work ie the condition must be permanent, lasting more than two years.  There is a strict time-limit from the date of application to demonstrate a disability has been identified, treated and stabilised, a period of only 13 weeks, which is a significant test.  In Mr Schembri's case two disabilities must be considered, namely a heart condition and chronic depression.

Heart Condition

16.      There are numerous medical reports about Mr Schembri's heart condition, including those from Dr Felice Herbert dated 19 May 2004, re cardiac catheterisation, Dr George Debono dated 24 July 2004 and 24 November 2004, mainly about depression but commenting on heart problems and the need for angioplasty, a Centrelink Medical Study and Work Details Report dated 15 August 2004 and a letter from the applicant's treating doctor, Dr Peter Micallef dated 24 August 2004, with a follow-up dated 29 November 2004.  There is also a medical assessment report by Dr Ellul and Dr Gatt dated 6 September 2004 and a Health Services Australia report by Dr Mieka Tabart dated 27 January 2005.

17.      Taken collectively the reports indicate that in mid-late 2004 the applicant was suffering from a severely dilated left ventricle with grossly impaired left ventricular systolic function, but not congestive heart failure.  It was concluded at this stage he was not to have surgical intervention.  The matter was further complicated by his depression and there was a query as to whether he could or could not engage in gainful employment in the near future.  Dr Debono noted that Mr Chembri was hypochondrial, depressive and throughout his adult life had been preoccupied with fears about illness.

18.      The relevant period for determining whether Mr Schembri qualifies for DSP is 13 weeks from the date of application (19 August 2004), thus it is medical evidence in the period mid August - late November 2004, which must be considered here.  At that time angioplasty was being contemplated, which confirms that the heart problem was not fully treated and stabilised and a letter from his treating doctor (Dr Peter Micallef) dated 10 August 2004 indicated he could not engage in gainful employment, but did not supply any detailed comment or disability rating.  Other reports are in much the same vein, the applicant's disability is recognised, but doctors are awaiting the outcome of attempts to stabilise the heart condition through medication (see for example the report of Dr Debono dated 24 November 2004).

19.      Dr Mieka Tabart, an adviser from Health Services Australia, examined all reports and concluded on 27 January 2005 there was a confusing account of the applicant's cardiac condition.  The only concrete evidence was an angiogram of May 2004 and she regarded some other reports as indicative, but lacking clinical detail.  The condition required further adjustment of medication regime and the treatment was neither fully treated or stabilised.

20.      The Tribunal concurs with the above assessment.  While later reports indicate some stabilisation of Mr Schembri's heart situation, the evidence is that his disability was not fully diagnosed, stabilised and treated at the relevant time of DSP application.  No impairment rating was applicable.

Depression

21.      Here the case is clearer, the applicant himself admitting ongoing anxiety and depression about illnesses, real or imagined, for much of his life.  Dr George Debono indicated in July 2004 the applicant had suffered a depressive illness for at least one and half years before referral to him and although medications had been prescribed, the condition had increased in severity since the heart problem was diagnosed.  Dr Debono did not indicate how long, if at all, it would take to remedy the situation.  A Centrelink Medical, Study and Work Details Report dated 19 August 2004 noted that although Mr Schembri was able to perform many functions, including caring for himself and driving a vehicle, there were problems in interacting with others, he had been 'boarded out' from prior employment and no indication existed as to how long he would require treatment.

22. A further medical report by Dr George Debono dated 22 May 2006 (ie after the relevant assessment period) indicated a psychiatric impairment rating of 10 points and this figure is further confirmed by Dr Debono in a report dated 22 May 2006. The doctor considered further treatment essential, with some changes in medication planned, hence the condition was still not fully treated and stabilised at the time of report. It is clear Mr Schembri did not meet the criteria of 20 or more points disability rating required to qualify for DSP under Section 94(1)(b) of the Act, nor was it demonstrated he had an ongoing inability to work to meet requirements of Section 94(1)(c). Dr Tabart described him as temporarily unfit for work in January 2005 and his condition may have worsened since, but that does not aid him in a situation where he fails to meet the 20 points plus disability rating and incapacity for work has not been fully tested by attempts at training or applications for employment.

23. Having considered all evidence anew the Tribunal considers on the balance of probabilities that the applicant John Schembri does not meet requirements of Sections 94(1)(b) and (c) of the Act and therefore is not eligible to receive disability support pension (DSP).

24.      The decision under review is affirmed. 

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  9 May 2007
Date of Decision  29 May 2007
Counsel for the Applicant               Applicant appeared on his own behalf
Counsel for the Respondent          Mr Brian Sparkes
Solicitor for the Respondent         Centrelink Legal Services