Tomasevic and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1213

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1213

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1386

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VINKO TOMASEVIC

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of oral decision        22 February 2007

Date of written reasons   5 April 2007

PlaceSydney

Decision The reviewable decision of the SSAT dated 6 September 2006 is affirmed.
This means that Mr Vinko Tomasevic has been unsuccessful in these proceedings.   

…………………[SGD]………………..

Senior Member Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – portability – whether Applicant is ‘severely disabled’ – whether Applicant can work eight or more hours per week for the next two years –– decision under review affirmed.

CASES

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

LEGISLATION

Sections 23(4B), 1213A (now repealed), 1217, 1218AA Social Security Act 1991

Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000

Clause 12 of Schedule 6 Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly     

1.      In the matter of Mr Vinko Tomasevic and the Secretary of the Department of Employment and Workplace Relations the following is my decision.  The decision under review is that of the Social Security Appeals Tribunal dated 6 September 2006 which affirmed the decision by a Centrelink authorised review officer dated 7 April 2006 that Mr Tomasevic was not severely disabled and, therefore, is not entitled to unlimited portability of his Disability Support Pension (DSP).  The original decision was made on 16 February 2006. 

The issue

2.      The issue is whether Mr Tomasevic was severely disabled for the purposes of applying the portability rules under the Social Security Act 1991 (the Act) in determining the length of time that DSP is payable to him whilst he was living in Croatia. This determination has to be made as of the date of the original decision, 16 February 2006.

3.      Mr Tomasevic was born in August 1943. 

The law

4.      Portability refers to the period of time during which a person can receive a benefit while living outside of Australia.  The relevant periods have been gradually reduced in recent years.  When Mr Tomasevic was granted DSP in 1998 the relevant provision was section 1213A of the Act which entitled a DSP recipient to be paid DSP while absent from Australia for up to 12 months.  This period was reduced to 26 weeks, unless the person was a severely disabled person, when changes were made to the portability rules by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000.

5.      The portability rules were further amended by the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003. Under those amendments, which came into effect on 1 July 2004, the period of DSP portability was reduced to 13 weeks during any absence from Australia (see clause 12 of schedule 6 of the 2003 Amendment Act and the current section 1217). The new portability provisions will apply to any future absences Mr Tomasevic has from Australia.

6.      Under these new provisions Mr Tomasevic will only be entitled to unlimited portability if he met the requirements of section 1218AA of the Act.  Not only does Mr Tomasevic need to be severely disabled, he also needs to meet all the other requirements of subsection 1218AA(1) of the Act, including that he is suffering from a terminal illness (s 1218AA(1)(c) of the Act).  And as there is no such evidence the provisions of that section cannot apply to him.

7.      However, because Australia and Croatia have an agreement in relation to Social Security matters, including the continuance of DSP payments beyond 13 weeks provided the recipient is severely disabled and living in Croatia, Mr Tomasevic may qualify for payments under the agreement.  I note that the Secretary's representative stated that the Department would advise Mr Tomasevic of the steps necessary to pursue this course if I find that he is severely disabled, and that is the only matter of which I am concerned. 

8.      Other relevant provisions are section 23(4B) of the Act, which provides:

For the purposes of this Act a person is severely disabled if:

(a)      a physical impairment, a psychiatric impairment, an intellectual impairment or two or all 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 two years;   and

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

9.      The guide to the Social Security will provide some guidance about the application of this provision.  The guide provides in paragraph 1.1.S.110:

A customer is accepted as being severely disabled if their impairment prevents them from doing any work for eight hours a week or more for the next two years and benefiting from training, education or rehabilitation to the extent of being able to work at least eight hours a week.

10.     Though the terms of the guide are not binding on the Tribunal it has long been accepted the policy guideline should be applied by administrative decision-makers unless there are cogent reasons in any particular case for not doing so (Re Drake v the Minister for Immigration and Ethic Affairs (No. 2) (1979) 2 ALD 634 at 639 to 645). In this case, the Secretary contends that there are no cogent reasons why that paragraph should not be applied when determining if Mr Tomasevic is severely disabled for the purposes of section 23(4B) of the Act.

11.     I heard evidence from Mr Tomasevic about his health, which he says makes him relevantly severely disabled.  He says he is physically and psychologically ill, depressed, nervous, cannot sleep, cannot sit for long.  He has pain in his neck, back, left shoulder, left leg, left knee, pain in the arms, gout, headaches, depression, high blood pressure, loss of concentration and problems with memory.  He is always thinking of the worst things and he's frightened that he will do something to himself, his wife or someone else.  He has bad dreams.

12.     He referred to a number of medications he is taking.  He described walking to his local shopping centre, which is about 15 minutes away, where he spends time talking with people and reading.  He also watches tennis on the nearby tennis courts and he helps his wife with some domestic tasks.  He tendered medical reports from Dr Mahoney, orthopaedic surgeon, dated 26 June 2006, 27 September 2006, 3 January 2007 and 16 February 2007 and from Dr Clarke, orthopaedic surgeon dated 16 November 2006, as well as imaging reports of 9 June 2006 and a pathology report of 22 September 2006.

13.     As of 26 June 2006 Dr Mahoney found him unfit for work, which is the view expressed even in his later reports and some earlier reports which are in the T documents.  However, in my opinion, Dr Mahoney does not, in any of this material, address the particular question that I have to determine.  Further his reports are not at the relevant time.  There is a large number of medical reports in Mr Tomasevic's file, including reports from Dr Mahoney going back to 1999 and reports of other medical clinical practitioners, including radiologists and rheumatologists.

14.     There was a treating doctor's report from Dr Mahoney of 7 October 2005 in which Dr Mahoney refers to some of the conditions Mr Tomasevic suffers and assessed those within his expertise.  As previously stated in my opinion he does not address an issue that I have to address and that is not a criticism of that doctor who was not asked to do so.  In June 1998 Dr Graudins found that Mr Tomasevic was unfit for full-time work for the next two years, full-time work being for 30 hours per week.  I just note that in relation to Dr Mahoney's evidence about fitness for work, it is unclear to me on what basis he is making that finding.  For example, if full-time work is 30 hours per week, I do not understand on what basis Dr Mahoney is making his assessment about fitness for work. 

15.     On review in August 2002 Dr Matalani found that Mr Tomasevic is unfit for heavy work, but was fit for suitable work for a maximum of 20 hours per week.  Upon a further review in June 2004 Dr Au found that he can work for eight to 14 hours for the next two years.  In response to Mr Tomasevic's request in December 2005 to have his DPS paid indefinitely when he permanently moves to Croatia, Dr Weerasinghe examined him on 8 February 2006 and found that he was able to do light sedentary work for 8 to 14 hours per week at that time and for more than 12 months.

16.     The test for determining severely disabled is a stringent one and I appreciate that Mr Tomasevic suffers from a number of conditions as set out in Dr Weerasinghe’s report and possibly some others, including gout, which was diagnosed by Dr White on 13 March 2006, and he also now complains of depression.  Given that I have to make a determination as of 16 February 2006, I find Dr Weerasinghe’s report most relevant and most useful and accept that doctor's finding that Mr Tomasevic can do work for at least eight hours per week for the next two years.

17.     It follows that he does not satisfy the provisions defining severely disabled.  I note that I advised Mr Tomasevic that he could file a new claim if he wished.  Such a claim would be assessed as of the date of the claim.  For the above reasons the decision under review is affirmed and Mr Tomasevic has not been successful in these proceedings.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly

Signed: Ms P Nimmagadda
  Associate

Date of Hearing  21 February 2007                 
Date of Oral Decision  22 February 2007
Date of Written Reasons  5 April 2007
Representative for Applicant   Unrepresented

Representative for the Respondent          Centrelink Legal Services Branch