Yigit and Secretary, Department of Employment and Workplace Relations
[2006] AATA 547
•23 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 547
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/142
GENERAL ADMINISTRATIVE DIVISION ) Re FATMANA YIGIT Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-Time Member) Date23 June 2006
PlaceHobart
Decision The decision under review is affirmed.
[Sgd B W Davis]
Part-Time Member
CATCHWORDS
Social Security - Disability Support Pension (DSP) - international payments - Turkey - absence from Australia - date of departure - portability period - whether severely disabled - savings provision - medical evidence - Social Security Appeals Tribunal (SSAT)
Social Security Act 1991 ('the Act'), sections 23(4B), 1217(4), Clause 128 of Schedule 1A
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999
Social Security and Veterans' Entitlements Legislation (Miscellaneous Matters) Act 2000
Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and other Measures) Act 2003
Guide to Social Security Law
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake No 2 (1979) 2 ALD 634
Walsh and SDFCS [2002] AATA 881 (4 October 2002)
Re Secretary, Department of Social Security and Tsakrios (1994) 79 SSR 1154
Re Bourboulas and SDSS (1997) AATA 12045 (27 July 1997)
REASONS FOR DECISION
23 June 2006 Associate Professor B W Davis AM (Part-Time Member) Decision under Review
1. The decision under review is a decision made by a Centrelink officer on 22 March 2005 to consider Mrs Fatmana Yigit as not being severely disabled under section 23(4B) of the Social Security Act 1991 (‘the Act’) at the time she left Australia on 18 May 2004 and therefore entitled to 52 weeks portability of DSP pension.
Issues
2. The primary issue is whether Mrs Yigit was ‘severely disabled’ as defined in section 23(4B) of the Act on the date she departed Australia and therefore entitled to receive Disability Support Pension (DSP) for an indefinite period while residing overseas, in accordance with section 1217 of the Act.
Legislation:
3. The relevant legislation is as follows:
Social Security Act 1991 and Amendments, Sections 23(4B), 1213A, Clause 128(1) of Schedule 1A
Social Security and Veterans Entitlements Legislation (Miscellaneous Matters) Act 2000
Social Security (International Agreements) Act 1999
Standard of Proof:
4. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.
Context:
5. The applicant, Mrs Fatmana Yigit, has been in receipt of Disability Support Pension (DSP) since 1997 and regularly travelled between Turkey and Australia, residing overseas for lengthy periods of time.
6. On 18 May 2004 the applicant departed Australia, having arrived on 8 April 2004, some four weeks previously. She was advised by Centrelink she would only receive DSP for a period of 52 weeks, because she was not severely disabled at the date of departure.
7. Mrs Yigit was residing in Turkey, but returning to Australia each year to renew her DSP portability. As she was outside Australia prior to changes in the law in 2000, she retained a right to 52 weeks portability, in lieu of the 26 weeks which would otherwise have applied. The law was amended again in July 2004 and under the new rules 13 weeks entitlement became the norm for DSP portability.
8. Mrs Yigit remains in Turkey and her DSP was cancelled in May 2005, twelve months after she departed Australia.
9. Mrs Yigit sought review of this decision and on 12 April 2005 an Authorised Review Officer (ARO) decided to affirm the original decision on grounds the applicant was not severely disabled at the time of departure from Australia and thus entitled to only 52 weeks portability of DSP from 18 May 2004.
10. The applicant sought further review by the Social Security Appeals Tribunal (SSAT) on 18 May 2005. The hearing was conducted in Hobart on 22 June 2005 and the Tribunal decided to affirm the decision under review, noting that Mrs Yigit was not severely disabled at the time of departure and Centrelink had correctly limited DSP portability to 52 weeks in accordance with the law.
11. The applicant then lodged an appeal for de-novo review by the Administrative Appeals Tribunal (AAT) on 26 September 2005.
The AAT Hearing:
12. The AAT hearing was conducted in Hobart on 13 June 2006. The applicant had been offered the choice of either attending the hearing or giving evidence by telephone. A Turkish interpreter would be provided if necessary. The applicant declined these offers, indicating the hearing should proceed without her. No witnesses would be called. The respondent (DEWR) was represented by Mr Brian Sparkes.
13. After the T documents and some exhibits were taken in as evidence, Mr Sparkes presented Centrelink’s case. He indicated two issues needed to be considered: whether or not Mrs Yigit was severely disabled on the date she departed Australia (18 May 2004) and what DSP portability period applied in her case. It was DEWR’s contention that no medical evidence existed confirming she was severely disabled at the time of departure; indeed reports by a Dr Ozer and Health Services Australia indicated that despite several disabilities, she was still capable of some part-time work, perhaps 8-14 hours per week, within 6-24 months of the date of reports. The meaning of the term ‘severely disabled’ is explained in section 23(4B) of the Social Security Act 1991 and has been thoroughly tested in law, confirming Centrelink’s application to Mrs Yigit’s case.
14. As far as the portability period is concerned the legislation is quite specific and Mrs Yigit was fortunate that a savings provision granted her 52 weeks of DSP portability, which far exceeded the current limit of 13 weeks; however she had failed to return to Australia by May 2005 and Centrelink had validly cancelled her DSP payments at the prescribed time.
15. Section 1218(1) of the Social Security Act grants the Secretary of DEWR limited power to extend the portability period, but only in circumstances which are unanticipated, grievous and of limited time period, prior to return to Australia. The applicant had not applied for such consideration and had not signalled an intention to move her domicile to Australia. Given all the available evidence, the correct and preferable decision for the AAT to make, was to affirm the SSAT made on 22 June 2005, that Mrs Yigit was not severely disabled on the date she left Australia and therefore entitled to DSP payments for only 52 weeks.
Analysis:
16. The Tribunal is required to conduct a de-novo review of all the evidence, noting statutory and policy provisions, as well as any relevant prior case determinations.
17. There is no reciprocal agreement in force between Turkey and Australia concerning welfare payments ie Turkey is not listed in the Schedules attached to the Social Security (International Agreements) Act 1999. This means Mrs Yigit’s case must be decided on the basis of Australian law, in particular various provisions of the Social Security Act 1991 and Amendments.
18. The term ‘severely disabled’ is defined in section 23(4B) of the Act as follows:
“(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or two 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; or
(b) the person is permanently blind”
The question is whether Mrs Yigit met these provisions on the day of her last departure from Australia (18 May 2004).
19. Mrs Yigit has never claimed that she was severely disabled at that date, but did claim she was suffering significant disabilities at the time. The Act seeks to draw a distinction between being disabled enough to qualify for DSP and being so severely disabled as to qualify for unlimited portability of pension. It is total incapacity for work which is at issue.
20. The medical evidence in this case is somewhat unsatisfactory, as the reports are dated other than near the time of departure from Australia, nonetheless some evidence and inferences can be drawn.
21. A medical report by a Dr Ozme, Auburn NSW, dated 3 September 2001 indicates Mrs Yigit suffered from cervical pain, osteoarthritis in her right arm, both hands, both knees and her right foot. There was also low back pain and she was being treated by Dr Chaudhary, a psychiatrist for anxiety and depression. It was Dr Ozme’s view that Mrs Yigit would not be able to return to work for more than two years. It had earlier been shown that she suffered from non-insulin dependent diabetes, but none of these disabilities appear to have prevented travel, as she subsequently visited Turkey for extended periods between 2001 and 2004.
22. A report from Health Services Australia (HSA) dated 26 September 2001 confirmed the above diagnoses, with a combined impaired rating of 20. HSA considered the applicant unfit for full-time heavy or manually intensive work, but capable of part-time or full-time light sedentary work. Vocational training and rehabilitation were not considered suitable for her. Notwithstanding HSA’s view that she was capable of some sedentary work, she was granted DSP.
23. The Tribunal notes that Mrs Yigit’s impairment rating of 20 is less than the impairment rating of 35 identified in Re Secretary, Department of Social Security and Tsakrios (1994) 79 SSR 1154, where the individual involved was disabled enough to qualify for DSP, but not so severely impaired as to preclude some part-time work of the semi-skilled or unskilled kind.
24. The next available medical evidence did not arise until January 2005, nearly a year after the applicant had departed for Turkey and close to the end of her 52 weeks DSP portability period. A report completed by Dr Hidayet Ozer dated 4 January 2005 stated Mrs Yigit did not suffer a terminal illness, but had three conditions which made a significant impact on her functioning:
Post menopausal osteoporosis and cervical and lumbar spondylosis, plus coaxthrosis, diagnosed on 15 September 2004;
Lumbar spinal stenosis, diagnosed 5 December 2004;
Hernia nucleases pulposis, diagnosed 5 December 2004.
25. Despite these considerable disabilities Dr Ozer considered Mrs Yigit would be able to work 8-14 hours per week within 6-24 months of his report, doing sedentary office work. Dr Ozer did not mention type 2 diabetes or anxiety/depression, so it is difficult for the Tribunal to determine her overall ability to function at that time.
26. There is one further piece of medical evidence from a Dr Mustafa Yasar, dated 30 May 2006, referring to an assessment conducted on 11 April 2006, briefly listing the applicant’s principal disabilities, which he claims amount to 60% functional limitation on work activities.
27. Mrs Yigit’s response is to argue she could not work even five hours a week as her time is fully taken up caring for her husband’s Alzheimer’s problems which demand unceasing attention. It is quite possible the applicant’s condition has deteriorated since leaving Australia, but this is of little assistance to her case, in a situation focussed on the period May 2004 to May 2005, when DSP payment ceased.
28. Reverting to the criteria specified in section 23(4B) of the Act, the Tribunal has concluded on the basis of all medical evidence and other information available to it and on the balance of probabilities, Mrs Fatmana Yigit was not severely disabled at the date of leaving Australia (ie 18 May 2004). She had earlier demonstrated a capacity to travel, did not claim to be severely disabled at the time of final travel and after detailed consideration the SSAT had formed an opinion that in May 2004 she was still able to do sedentary work of at least 8 hours per week.
29. Turning next to the issue of the DSP portability period, the requisite conditions are set out in section 1217 of the Act, but the law relating to allowable periods of absence have changed several times since 2000. Prior to 20 September 2000, section 1213A of the Act provided, in effect, that a person receiving DSP was entitled to unlimited disability pension if they were severely disabled, and if not, 12 months.
30. Section 1213A was amended in 2000 as a consequence of the Social Security and Veterans’ Entitlement Legislation (Miscellaneous Matters) Act 2000, which left the severely disabled portability DSP provisions intact, but otherwise reduced the portability period for DSP recipients to 26 weeks. There was a savings provision (Clause 128(1) of Schedule 1A) which continued the 52 weeks portability for a person on DSP who was absent from Australia immediately prior to 20 September 2000 and who after that date did not return to Australia for more than 26 weeks. Mrs Yigit was able to use this saving provision to retain her 52 weeks portability from May 2004.
31. A further amendment to the DSP portability period entered into force on 1 July 2004, as a result of the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures Act 2003, tightening the time period of portable social security payments from 26 weeks to 13 weeks. This did not affect Mrs Yigit, who retained her 52 weeks portability period from May 2004-May 2005.
32. The Tribunal has considered whether any other provision exists which might have permitted an extension of portability period beyond 52 weeks. As previously noted section 1218 of the Act does grant the Secretary of DEWR limited powers to extend the portability period, but only in circumstances which are unanticipated, grievous and of limited time duration prior to return to Australia. No such circumstances are apparent in Mrs Yigit’s case, not did she seek active consideration of extension, having apparently decided to continue domicile in Turkey. This reinforces the point that the 52 weeks portability period was appropriate in her circumstances.
33. To summarise, having conducted de-novo review the Tribunal has decided on the balance of probabilities Mrs Yigit was not severely disabled at the time of leaving Australia and only entitled to 52 weeks DSP portability period.
Decision:
34. The Tribunal affirms the original decision made on 22 March 2005, subsequently affirmed by the Social Security Appeals Tribunal on 22 June 2005, that Mrs Fatmana Yigit was not ‘severely disabled’ as defined in section 23(4B) of the Social Security Act 1991, when she departed Australia on 18 May 2004, and therefore was entitled to payment of DSP for a period of 52 weeks only.
I certify that the 34 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 of Hearing 13 June 2006
Date of Decision 23 June 2006
Counsel for the Applicant Applicant did not attend
Counsel for the Respondent Mr B Sparkes
Solicitor for the Respondent Centrelink Legal Services
0
1
0