Tomasevic and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1212

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1212

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1385

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARIJANA 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 Mrs Marijana 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Sections 23(4B), 1213A (now repealed), 1217, 1218AA Social Security Act 1991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  

Introduction

1.      I am to give two decisions this morning in relation to a husband and a wife.  The first one is in relation to Mrs Marijana Tomasevic and the Secretary, Department of Employment and Workplace Relations.  The reviewable decision is the decision of the Social Security Appeals Tribunal dated 6 September 2006.  It affirmed the decision of a Centrelink authorised review officer dated 7 April 2006 which in turn affirmed the decision of a Centrelink officer dated 28 February 2006 that Mrs Tomasevic is not “severely disabled.”

2.      The significance of this finding is that if she was found to be severely disabled she may be entitled to unlimited “portability” of her disability support pension (“DSP”) which she has been receiving since 1998.  That is, she may be absent from Australia permanently and continue to receive DSP.  I also dealt in separate proceedings with a similar decision in respect of her husband.  In short, Mr and Mrs Tomasevic wish to return to live permanently in Croatia and receive their DSP pensions while residing there.

Issue 

3.      The issue is whether Mrs Tomasevic is “severely disabled” for the purposes of applying the portability rules as of 28 February 2006. 

The Law 

4. The period of time during which a person can receive a benefit while living outside Australia has gradually been reduced in recent years. When Mrs Tomasevic was granted DSP in 1998 the relevant provision was section 1213A of the Social Security Act 1991 (the Act) which entitled a DSP recipient to be paid DSP while absent from Australia for a period of up to 12 months. That 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 (2003 Amendment Act). Under those amendments, which came into effect on 1 July 2004, the period for DSP was reduced to 13 weeks during any absence from Australia (see clause 12 of schedule 6 of the 2003 Amendment Act and section 1217 of the current Act.)

6.      The new portability provisions will apply to any future absences Mrs Tomasevic has from Australia.  Under these new provisions Mrs Tomasevic would only be entitled to unlimited portability if she met the requirements of section 1218AA of the Act.  Not only does Mrs Tomasevic need to be “severely disabled”, she also needs to meet all the other requirements of subsection 1218AA(1) of the Act including that she is suffering from a terminal illness (section 1218AA(1)(c)).  As there is no evidence that Mrs Tomasevic has such an illness, the provisions of that section cannot apply to her.

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, Mrs Tomasevic may qualify for payment under the agreement.  I note that the Secretary’s representative stated that the Department would advise Mrs Tomasevic of the steps necessary to pursue this course if I find that she is “severely disabled.”

8.      Other relevant provisions follow.  Section 23(4B) of the Act provides:

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. …

9.      The Guide to the Social Security Law provides some guidance about the application of this provision.  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.     Although the terms of the Guide are not binding on the Tribunal it has long been accepted that policy guidelines should be applied by administrative decision-makers unless there are cogent reasons in a particular case for not doing so (Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645. In this case the Secretary contends that there are no cogent reasons why that paragraph of the Guide should not be applied in determining whether Mrs Tomasevic is “severely disabled” for the purposes of section 23(4B) of the Act.

11.     Throughout the course of this decision when I refer to “severely disabled” I am referring to both the requirements, that is section (a)(i) and (ii) that relate to work and also rehabilitation or assistance programs.

Consideration 

12.     I heard evidence from Mrs Tomasevic about her belief that she is “severely disabled.”  She recounted pain in her back, both knees, arms, hands, pins and needles in her fingers and legs and also migraine, pain in neck and shoulders and that she gets very tense.  She constantly feels tired, cannot sit for long, does not sleep well, is depressed and cannot concentrate.  She described the domestic duties she can carry out and referred to difficulties with some of them and that she does various tasks for a brief period and then rests and that her husband helps her with some tasks such as tying shoelaces.  She spends more than eight hours a week doing her domestic tasks and she said if she had to work eight hours she could not do that housework. 

13.     She provided a medical certificate from Dr Mahoney, an orthopaedic surgeon, dated 16 February 2007 saying that she was unfit to work from that date until 19 March 2007 because of conditions involving the neck, back, shoulders, arms and legs.  I also had a report from Dr Mahoney of 3 January 2007 addressing Mrs Tomasevic’s pain in her neck, left shoulder, both wrists, numbness of her hands, low back pain and electric shock-like feeling in her right leg and pain in both knees, right great toe and swelling of left ankle.  Dr Mahoney considered her unfit for work.

14.     I also had a report from Dr Clarke dated 16 November 2006 referring to her long history of pain in the neck, back, shoulders and knees.  He noted that she was overweight.  He gave no opinion about her fitness for work or the extent of her disability.

15.     I had many medical assessments of Mrs Tomasevic in the T documents which were before me from the time she was granted the DSP in 1998.  They include a number of reports from Dr Mahoney and others including neurologists, radiologists and a number of scans.  I do not go to that in detail but there was a volume of material before me which I have taken into consideration.

16.     On 30 June 1998 Dr Graudins of Health Services Australia (‘HSA') examined Mrs Tomasevic and assigned a 10-point rating for her arthritis of the right knee and five points for her migraines.  Dr Graudins also found that she was at that time temporarily unfit for work pending gallbladder surgery.  He further said that once she recovered from surgery she would be considered unfit for her usual process work but fit for sedentary type duties with no heavy lifting or bending.  She would benefit from retraining and vocational rehabilitation to improve her work options. 

17.     On reconsideration of the decision to reject her claim for DSP the Centrelink  disability officer rated her general pain at 10 points under table 20 which increased her total impairment to 25 points thus satisfying the DSP criteria.  The officer further found that she would be unable to work as a factory worker for 24 months and she was granted the DSP effective from 25 June 1998.

18.     Mrs Tomasevic’s DSP was reviewed and on 22 October 2002 the authorised review officer rated her pain at 15 points and her migraines at five points and further found that she was not fit to return to work at that point in time.  Although the Commonwealth Medical Officer stated that she would be fit for work in 12 months given the long-term history this was unlikely.  A review in 12 months was recommended.  A decision was made that she was not “severely disabled.”

19.     On 5 March 2004 Mrs Tomasevic inquired about the portability of her DSP.  She was referred to a disability officer for a “severely disabled” assessment.  On 1 June 2004 Mrs Tomasevic was examined by Dr Au, HSA medical examiner, who found the neck/back pain can be rated at 20 points.  He further found that she could work 8 to 14 hours per week at that time but could work 15 to 29 hours within six months to more than 24 months.

20.     On 11 June 2004 a Centrelink officer decided that Mrs Tomasevic’s DSP could not be paid overseas for absences of more than 26 weeks because she was able to work at least eight hours per week and therefore could not be assessed as “severely disabled.”  I note as previously stated that from 1 July 2004 the portability legislation was changed such that the portability period was reduced from 26 weeks to 13 weeks.

21.     On 21 December 2005 a Centrelink specialist officer recorded an on-line document which stated that because Mrs Tomasevic returned to Australia within the allowed 26 weeks, the decision relating to her being assessed as not “severely disabled” would not be appealed.  She was advised to lodge an appeal of the decision when she decided to go overseas again.

22.     On 22 December 2005 Mrs Tomasevic advised that she was considering leaving Australia permanently on 1 April 2006.  On 23 February 2006 Mrs Tomasevic was examined by Dr Wendy Levot, HSA medical adviser, who found that her back pain could be rated at 10 points, her migraines at five points and her right knee at 10 points.  She further found that she was able to do any work for 15 to 29 hours per week currently and for more than 24 months.

23.     On 28 February 2006 the decision was made which has given rise to these proceedings when a Centrelink disability officer decided that Mrs Tomasevic was not “severely disabled.”  As 28 February 2006 is the date on which I have to determine whether Mrs Tomasevic was “severely disabled,” I consider the opinion of Dr Levot most relevant. 

24.     Accordingly, I find that Mrs Tomasevic can do work for at least eight hours per week for the next two years and therefore she is not “severely disabled.”  I also find that in accordance with section 23(4B)(a)(ii) she is able to benefit from participation in a program of assistance or a rehabilitation program within the next two weeks on the basis of the evidence which is before me.

25.     For those reasons I am not satisfied that Mrs Tomasevic qualifies as being “severely disabled.”  It is a very stringent test and although she has a number of conditions their severity is not such as to qualify her as being “severely disabled.”  For those reasons the reviewable decision is affirmed.  Mrs Tomasevic has not been successful in these proceedings.

I certify that the 25 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