Sritharan and Secretary, Department of Social Services (Social services second review)

[2016] AATA 632

Sritharan and Secretary, Department of Social Services (Social services second review) [2016] AATA 632 (23 August 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4596
Re	Sithamparanathan Sritharan
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	23 August 2016
Place	Sydney

The Tribunal affirms the decision under review.

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Dr L Bygrave, Member

Catchwords

Social security — Disability support pension — Eligibility for — New Zealand citizen – residential qualifications satisfied – whether ‘severely disabled’ – decision affirmed

Legislation

Social Security Act 1991 (Cth), ss 7(2), 94(1)

Social Security (International Agreements) Act 1999 (Cth), s 6, Sch 3, Arts 1-3, 5, 12

Cases

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Dr L Bygrave, Member

23 August 2016

INTRODUCTION

1. Mr Sithamparanathan Sritharan is a citizen of New Zealand who has resided in Australia since June 2011 on a Special Category visa (subclass 444).

2. On 31 October 2014, Mr Sritharan lodged a claim for disability support pension (DSP) on the basis that his medical conditions were having an impact on his ability to function.

3. On 2 December 2014, Mr Sritharan attended a face to face job capacity assessment (JCA). The JCA concluded that Mr Sritharan’s medical conditions warranted an impairment rating of 20 points and that he had a work capacity of 8–14 hours per week.

4. Centrelink, both initially and on review, rejected Mr Sritharan’s claim for DSP on the basis that he was not ‘severely disabled’ as defined in Schedule 3 of the Social Security (International Agreements) Act 1999 (Cth) (International Act) because he was assessed as being able to work for more than eight hours per week.

5. On 29 July 2015, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that Mr Sritharan did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).

6. On 2 September 2015, Mr Sritharan applied to the General Division of the Administrative Appeals Tribunal for a review of the AAT1 decision.

   RELEVANT LEGISLATION AND ISSUES

7. To be eligible for DSP, a claimant must satisfy s 94(1) of the Act, which provides that:

   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;

   …

   (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…

8. The term ‘Australian resident’ is defined in s 7(2) of the Act as follows:

   (2) An Australian resident is a person who:

   (a) resides in Australia; and

   (b) is one of the following:

   (i) an Australian citizen;

   (ii) the holder of a permanent visa;

   (iii) a special category visa holder who is a protected SCV holder.

9. At s 7(2A) to (2D) of the Act, a person must have been residing in Australia on or shortly after 26 February 2001 to be a ‘protected SCV holder’.

10. As Mr Sritharan first arrived in Australia in June 2011 on a Special Category visa (subclass 444), he is not a ‘protected SCV holder’ and is not an ‘Australian resident’ for the purposes of the Act. He must therefore rely on the International Act to be eligible for DSP.

11. The International Act provides that social security agreements have primacy over any other provisions of the social security law. Relevantly, s 6 of the International Act provides:

    (1)The provisions of a scheduled international social security agreement have effect despite anything in the social security law.

    (2)Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law.

12. Schedule 3 of the International Act sets out the Agreement between Australia and New Zealand for the payment of social security benefits to New Zealand citizens residing in Australia (Agreement).

13. In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532 at [64], the Full Federal Court said:

    [64] A disability support pension is only available under the Agreement where a person is severely disabled, in accordance with Art 2(2)(a), and otherwise satisfied the residence requirements in Art 2(2).

14. Article 2 of the Agreement provides:

    [1] Except as provided under paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, consolidates or replaces them:

    (a) in relation to Australia: the Acts forming the social security law in so far as those Acts provide for, apply to or affect the following benefits:

    …

    (ii)       disability support pension;

    …

    [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.

    (emphasis added)

15. ‘Severely disabled’ is defined in the Agreement at Article 1, paragraph 1(l) which provides:

    “severely disabled” means a person who:

    (i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:

    (aa) to work for at least the next 2 years; and

    (bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

    (ii) is permanently blind;

16. Article 3 provides that the Agreement applies to any person who is or has been an Australian resident; or is or has been a New Zealand resident. Pursuant to Article 12, paragraph 4 of the Agreement, no person is entitled to claim a disability support pension under the Agreement unless they have accumulated an aggregate of more than ten years of residence in Australia and/or New Zealand.

17. In his claim for DSP, Mr Sritharan stated that he moved from Sri Lanka to New Zealand in June 1994 before moving to Australia in June 2011. He has resided in Australia since June 2011. I am of the view that Mr Sritharan has accumulated an aggregate of more than ten years of residence in New Zealand and/or Australia and therefore satisfies the requirement in Article 12 of the Agreement.

18. The meaning of an Australian resident is defined in Article 5, paragraph 1 of the Agreement and sets out a number of factors which must be taken into account when deciding whether a person is residing in Australia. It provides:

    “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.  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.

19. As this matter was heard ‘on the papers’, I have limited evidence before me in relation to Mr Sritharan’s residence in Australia. In his claim for DSP in March 2014, Mr Sritharan stated that he:

    ·arrived in Australia in June 2011;

    ·worked in Australia as a civil engineer in two positions between July 2011 and April 2013;

    ·is married with two children (aged 20 years old and 11 years old); and

    ·resides with his wife and children at a permanent address in Australia.

20. As there is no information before me that suggests otherwise, I am reasonably satisfied that Mr Sritharan meets the residency provisions as required by the Agreement.

21. Therefore, the determinative issue in this matter is whether Mr Sritharan is ‘severely disabled’ as defined in Article 1 of the Agreement.

    Evidence – Mr Sritharan’s medical conditions

22. In his claim for DSP dated 31 October 2014, Mr Sritharan’s medical conditions were described as ‘depression, diabetes & retinopathy, hypertension, bleed melaena’, which are being treated with medication. A medical report for the DSP dated 31 October 2014 and completed by Dr Q Le (General Practitioner) diagnosed Mr Sritharan with ‘chronic adjustment disorder with significant depressed mood’ and ‘diabetes, diabetic retinopathy, hypertension, hyperlipidaemia’.

23. In medical reports dated 24 February 2014, 17 May 2014 and 9 August 2014, Dr C Olujie (Clinical Psychologist) diagnosed Mr Sritharan with ‘chronic adjustment disorder with significant depressed mood’ and noted that ‘psychosocial/family stressors’ contribute to the worsening of his symptoms.

24. Dr Emma Collins (Clinical and Forensic Psychologist), in a report dated 22 January 2016, confirmed that Mr Sritharan presented with a depressive disorder but did not support his claims that he is severely impaired by his mental health disorder.

25. A report from Dr D Dwyer (Consultant Physician and Gastroenterologist) dated 19 February 2015 described a history of iron deficiency anaemia.

26. For Mr Sritharan to be classed as ‘severely disabled’ as required by the Agreement, the condition(s) must make him, without taking into account any other factor, totally unable to work for at least the next 2 years; and unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.

27. I note that the Australian Government’s Guide to Social Security Law (at 1.1.S.110) states that for the purposes of DSP:

    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, education or rehabilitation to the extent of being able to work at least 8 hours a week.

28. The JCA of 2 December 2014 described Mr Sritharan’s permanent medical conditions as: psychol/psychiatric disorder, non-insulin dependent diabetes, hypertension and a circulatory system condition. Mr Sritharan’s psychol/psychiatric disorder was assessed in the JCA as having a ‘severe impact on function’ and he was classed as having a baseline work capacity of 8–14 hours per week and a capacity for work within two years with intervention as 8–14 hours per week.

    CONCLUSION

29. Based on the evidence before me, I am not satisfied that Mr Sritharan is totally unable to work for the next two years and unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program. I also am not satisfied that Mr Sritharan is unable to do any work for eight hours per week for the next two years, and is unable to benefit from training, education or rehabilitation to the extent of being able to work at least eight hours per week.

30. I am therefore of the view that Mr Sritharan is not ‘severely disabled’ and does not satisfy the requirements of Article 2 in the Agreement. He therefore does not qualify for DSP.

    DECISION

31. The Tribunal affirms the decision under review.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated 23 August 2016

Date of hearing (on the papers)	25 July 2016
Applicant	Self represented
Solicitors for the Respondent	Department of Human Services