Viviana Sastre and Secretary, Department of Social Services

[2015] AATA 449

[2015] AATA 449

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5999
Re	Viviana Sastre
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	22 June 2015
Date of written reasons	24 June 2015
Place	Brisbane

The Tribunal affirms the decision under review.

..................................[SGD]......................................

Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – disability support pension – application for unlimited portability – whether applicant is prevented from performing any work independently of a program of support in the next five years – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 1218AAA(1)

REASONS FOR DECISION

Senior Member Bernard J McCabe

24 June 2015

1. This is an application for unlimited portability of the Disability Support Pension, pursuant to section 1218AAA of the Social Security Act 1991. The requirements for granting unlimited portability are set out in s 1218AAA(1). Most of those requirements, it is accepted, are satisfied in Mrs Sastre's case. It is accepted that she is receiving a Disability Support Pension, it is accepted that she suffers from a severe impairment and it is accepted that she will have that severe impairment for at least the next five years.

2. The question is in relation to ss 1218AAA(1)(d) which deals with whether the severe impairment would prevent the person from performing any work, independently of a program of support, within the next five years.  Now, we have been provided with evidence from Mrs Sastre’s treating general practitioner, Dr Ng, and then more recently a report of 1 May 2015 from Dr Shahi.  Dr Shahi says:

   This is to advise that Mrs Viviana Sastre, aged 53 years, is deemed unable to work in the foreseeable future because of ongoing medical problem.  I have been seeing her as her general practitioner over the past two years.  It seem unlikely that she can ever return to the workforce. [sic]

3. That evidence, on the face of it, suggests that the requirement in (d) is satisfied.  However, it is lacking in detail.  For that reason we arranged to speak with Dr Shahi by telephone, in an impromptu telephone hook-up, and Mr McQuinlan, on behalf of the respondent, questioned the doctor as to the nuances of his report of 1 May 2015.  That evidence suggests that Mrs Sastre is unable to work currently, and certainly if she is not compliant with her medication she will not be returning to the workforce, in any capacity, for any duration, at any point over the next five years.  However, Dr Shahi, when questioned, did concede that if the applicant were compliant with her medication, while it is not foreseeable when she might be able to do some work, it is foreseeable that she might do some work at some point, which might include work in the next five years.

4. On that basis I do not think I can accept that subsection 1218AAA(1)(d) is satisfied.  The legislation is definitive.  It refers to doing any work and it appears that I cannot be satisfied that she would be unable to do any work, particularly if she is compliant with her medication, over the next five years.  It remains to be seen whether in fact she can, but I am trying to decide, prospectively, whether she will be prevented from any work, and at this point I cannot be satisfied that is the case.  In those circumstances the decision under review must be affirmed.

I certify that the preceding 4 (four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

...............................[SGD].................................

Associate

Dated 24 June 2015

Date of hearing	22 June 2015
Solicitors for the Applicant	Mr Ricardo Viana, Viana Lawyers
Advocate for the Respondent	Mr Rick McQuinlan