Zaia and Department of Family and Community Services
[2002] AATA 339
•13 May 2002
DECISION AND RESONS FOR DECISION [2002] AATA 339
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/774
GENERAL ADMINISTRATIVE DIVISION )
Re NAWAL ZAIA
Applicant
And Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date13 May 2002
PlaceSydney
Decision The decision under review is affirmed
[Sgd] Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY – claim for disability support pension – whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 points or more vide Schedule 1B - ability to undertake work – ability to undertake educational or vocational training – whether Applicant meets residency requirements
Social Security Act 1991 – section 94, schedule 1B
Social Security (Administration) Act 1999 – Schedule 2
Secretary, Department of Family and Community Services v Michael (2001) FCA 1811
REASONS FOR DECISION
Rear Admiral AR Horton AO, Member
This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 14 May 2001 which affirmed a decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 26 April 2000, that Nawal Zaia ("the Applicant") is not eligible for the disability support pension ("DSP"). The latter decision had been affirmed in a decision by an Authorised Review Officer dated 14 March 2001.
The Applicant lodged an Application for review by the Administrative Appeals Tribunal ("the Tribunal") on 6 June 2001. At the hearing before the Tribunal on 19 March 2002, the Applicant was self represented. Ms Susan Fahey, an advocate for Centrelink, appeared for the Respondent. Ms Dabliz, an interpreter fluent in the Arabic language was present for the hearing.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following documentation:
Exhibit A1 Letter from Dr S Benjamin dated 6 September 2001
Exhibit R1 Medical Assessment Report by Dr P Thomas of Health Services Australia dated 28 September 2001
Exhibit R2 Report from Dr P Kamenyitzky, Senior Medical Adviser, Health Services Australia dated 11 February 2002.
Exhibit R3 Report from Dr S Benjamin dated 27 November 2001.
Exhibit R4 Respondent's Statement of Facts and Contentions dated 18 March 2002
LEGISLATION
Section 94 of the Social Security Act 1991 ("the Act") defines the qualification criteria for the disability support pension, and states, relevantly:
"94(1) 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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(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.
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that :
(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
if subsection (4) does not apply to the person – the availability to the person of work in the person's locally accessible labour market."
Schedule 2, Part 2 of the Social Security (Administration) Act 1999 relevantly states:
"4. Start day – early claim
If
a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim was made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim was made, and;
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment."
Impairment is assessed against the work related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:
"2.These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. …
3. These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. …
…
5. The condition must be considered to be permanent. …
…
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. …"
ISSUES
On 26 April 2000 a delegate of the Respondent denied eligibility on the basis that the Applicant does not have a continuing inability to work (vide subsection 94(I)(c)(i) of the Act). In affirming that decision on 14 March 2001, the Authorised Review Officer found the conditions of migraine and depression to be permanent, and assessed a combined impairment rating of 15 points, this being less than the 20 points required under subsection 94(1)(b) of the Act. The Authorised Review Officer was also satisfied that the Applicant did not have a continuing inability to work, and hence did not satisfy subsection 94(1)(c)(i) of the Act.
On 14 May 2001, the SSAT affirmed the decision of 14 March 2001, finding that the total impairment rating was 5 points. The SSAT did not proceed to consider whether the Applicant had a 'continuing inability to work'.
Before this Tribunal, the Respondent conceded that the Applicant met the conditions of impairment rating of 20 points, and a continuing inability to work pursuant to subsections 94(1)(a), (b) and (c), but does not meet the criteria in subsection 94(1)(e) in respect of Australian residency. The Respondent submitted that this was the only relevant issue in this matter, the submission being that on the evidence, the Applicant does not have 10 years qualifying Australian residency, and had a continuing inability to work prior to arriving in Australia, and thus does not meet the criteria in any of subsections 94(1)(e)(i)(ii) and (iii). The Tribunal therefore proceeded to consider the matter as to whether the Applicant met the conditions of subsection 94(1)(e).
BACKGROUNDThe Applicant was born in Baghdad in 1963. Upon marriage in 1995 to an Australian resident born in Iraq, she migrated to Australia. The Applicant and her husband have two children.
The Applicant lodged a claim for DSP on 28 March 2000. Her treating doctor, Dr J Atto, diagnosed her conditions as chronic depressive disorder with personality disorder and headaches (T5). Following medical examination, Dr Z Anjum of Health Services Australia ("HSA"), for the Respondent, diagnosed the conditions as depression with chronic dysthymia (which he considered to have been present prior to migrating to Australia) and migraine, and considered the Applicant had a nil impairment rating under subsection 94(1)(b) of the Act, and was fit for suitable work. Whilst making that assessment, he also stated in response to question 7 in his Medical Assessment Report, that the 'person's inability to work' did not arise in Australia, 'chronic dysthymia (being) of long standing'.
Dr S Benjamin, a General Practitioner at St John of God Hospital with extensive experience in psychiatry, first saw the Applicant on 24 March 2000. His report of 1 September 2000 (T12) states, relevantly:
"Nawal complained of depressed mood, high irritability and insomnia. She said that she lost interest and motivation and that she was extremely moody and emotional at the slightest trigger. She described periods of intense depression and hopelessness, which would last for weeks and months. She said that she would stay in bed, would not eat and would not communicate. She has been symptomatic over the past 13 to 14 years. She said that she had attempted suicide on repeated occasions back in Iraq by overdosing on tablets or attempting to gas herself. She denied previous hospitalisations, however.
…
Nawal was educated until the age of 15 to an equivalent to year 10. She said that she had to leave school to stay at home to help her mother look after her handicapped sister until she got married about the age of 30."Following receipt of this report, an HSA file assessment was carried out by Dr Hung Jun Yu on 25 September 2000 (T11). He recommended a further medical assessment, which was carried out by Dr A Elliott of HSA on 17 November 2000 (T13). He notes the Applicant's view that the condition of depression/dysthymia developed in about 1986, and that she had attempted suicide on 4 – 5 occasions prior to coming to Australia. He further noted that anti depressant medication was commenced about 1995. He noted that his assessment of the Applicant's condition of depression, and that of Dr Anjum in April 2000, varied from that of Dr Benjamin and accordingly recommended an independent psychiatric assessment.
Dr M Prior, Consultant Psychiatrist, examined the Applicant on 8 January 2001, his report being at T16. He notes the Applicant to be a vague historian, who has difficulty in describing frequency and severity of symptoms. He variously states:
"This 38 year old woman describes a history consistent with a chronic affective syndrome in the context of long-term personality difficulties. She describes the onset of sad, irritable, angry and reactive mood dating back to her early 20's. She denies periods of significant remission from this mood state. She described what appeared to be periods of exacerbation coinciding with her Post-Natal periods… However, she later contradicted this information about possible Post-Natal exacerbation, saying that her mood essentially was unchanged Post-Natally. …
She states that she has suicidal impulses and ideation from time to time, but particularly around her period time. She denies current suicidal ideation. She tells me she often feels anxious and describes symptoms suggestive of partial panic attacks. It was impossible to determine the frequency of these. …
She describes lowered energy over three years…She claims her self care is reasonable….She stated that her husband is responsible for most of the functions of daily domestic life and that she "doesn't do much". …
Past psychiatric history reveals that she had several overdose attempts, wrist slashing episodes, and attempts at gassing herself in her late teens and early 20's."
Dr Prior recounts the Applicant's family background, as given to him, as an unhappy childhood in an abusive family of 13 siblings, and a stressful adolescence during the Iraq/Iran war, in which one brother was killed. He summarises the effect of those years as:
"It was difficult to disentangle her mood state from her pre-morbid personality. However, she does describe a number of personality traits that appear to have been present since her teenage years, which have continued up to the present time. These include a degree of impulsivity, self-injurious impulses and behaviours, poor anger modulation, an inability to be alone, and a fear of abandonment."
In summary, Dr Prior assesses the Applicant as having a chronic dysthymic disorder of mild to moderate severity, with a possibility of superimposed post-natal depressive episodes, the dysthymia occurring in the context of the Borderline Personality Traits. Dr Prior considers that the Applicant 'would certainly be fit, within the next two years, to undertake vocational training and part-time work leading to full-time work'. The Tribunal takes no account of this latter assessment, given that the Respondent has conceded that the Applicant has a 'continuing inability to work'.
As noted in paragraphs 7 and 8, the primary decision was subsequently upheld by an Authorised Review Officer and the SSAT.
Available to the Tribunal was a Medical Assessment Report by Dr P Thomas of HSA dated 28 September 2001 (Exhibit R1) in relation to a later claim by the Applicant, Dr Thomas records a history of depression dating from before her arrival in Australia in 1995, and notes that the migraine condition was also experienced in Iraq. In the Medical Assessment Report, he indicates 'no' to Question 7, 'did the person's inability to work arise in Australia', stating 'in Australia since 1995 - unfit for work for several years before this'.
On 11 February 2002, Dr P Kamenyitzky, Senior Medical Adviser HSA, provided a report (Exhibit R2) as requested by the Respondent to clarify the Applicant's ability to work. His report is based on the papers and reports previously referred to. He concludes that:
"It would seem self evident from the above information that all of the doctors quoted above agreed that her psychiatric condition was well established and at its full severity when she came to Australia in 1995."
As to the ability or otherwise of the Applicant to work prior to her arrival in Australia, Dr Kamenyitzky draws no conclusions.
ORAL EVIDENCE
In evidence to the Tribunal, the Applicant confirmed that she had married in Iraq, shortly before migrating to Australia. Her husband had been resident in Australia for some years. Her only close relative in Australia is a brother living in Sydney. She came of a poor family of 13 children. She described her childhood as being 'not happy' with 'lots of problems'. She instanced a significant emotional effect when a brother died in 1986, and being upset at the fighting, with knives, between other brothers.
She started school at the age of 6 or 7, leaving school at year 9 in 1983 in order to attend to home duties, and because she was repeating classes leading to a loss of interest in schooling. She remained living in the family home until her marriage and migration to Australia. She never worked outside the home in Iraq, and stated that even had she been well enough to do so, her older brother would not permit it. She has never worked in Australia.
She spoke of illnesses in Iraq, which started prior to her brother's death in 1986, but were aggravated by his death. She described her condition at that time as being very nervous, with yelling and screaming, and wanting to hit out at others. She confirmed occasions of suicidal intent. She stated that she had not been hospitalised in Iraq, and that her only medication was occasional morphine injections.
The Applicant agreed with the Respondent that her main condition was depresssion, and that it was of long standing. She considered that in spite of medication since arriving in Australia, referred to variously in medical reports for both depression and migraine, there had been little improvement. She confirmed that she had told Dr Benjamin of her depression and suicidal attempts in Iraq, and agreed that she had given similar information to Centrelink doctors.
In response to further questions from the Tribunal, the Applicant stated that she could not recall the report by Dr Thomas (Exhibit R1) and Dr Kamenyitzky (Exhibit R2). These were read to her by the interpreter. The Tribunal sought confirmation from the Applicant, which was forthcoming, that she understood the implications in the various medical reports before the Tribunal, and the importance that might be placed on those reports. Further, in acknowledging that in some societies women were not expected to, or even allowed to work outside the home, and from the evidence already given, the Applicant was precluded from such work by direction of her elder brother, the Tribunal questioned the Applicant as to her ability to work prior to coming to Australia. The Applicant's response was that she was never well enough to work, and that her condition would have precluded it.
In concluding her evidence, the Applicant stated that whilst she was in receipt of parenting allowance, she considered that as an Australian resident, she was being disadvantaged by an unreasonable requirement (in the legislation) for a ten year qualifying residency in Australia for DSP. She considered she 'needed help' and that she should not be penalised because her medical condition, which precluded her from working, originated in Iraq rather than in this country.
The Respondent submitted that whilst the Applicant satisfied the criteria in section 94 (1)(a) to (d) of the Act, she did not satisfy subsection 94(1)(e) of the Act, in respect of Australian residency, that she was not an Australian resident at the time when she first had a continuing inability to work. The Respondent submitted that on the evidence given by the Applicant, she was unfit because of depression for work in Iraq, that is before migrating to Australia, and that this condition of depression was still present and the reason she had a "continuing inability to work".
The Respondent further contended (exhibit R4) that whilst HSA medical advisers were not necessarily in agreement with the Applicant's ability to work, they were in agreement that the condition existed prior to her arrival in Australia. Dr Benjamin considered the Applicant's psychiatric condition had been present since about the age of 15; the independent medical opinion of Dr Prior recorded a history of problems associated with a condition of depression commencing in the late teens and early twenties.
The Respondent drew on the decision of the Full Federal Court in Secretary, Department of Family and Community Services v Michael [2001] FCA 1811, wherein Drummond, Kiefel and Dowsett JJ discussed the issue of inability to work before a person becomes an Australian resident. The Respondent submitted that the decision of the Full Federal Court, drawing on the intention of Parliament when the provisions were drafted, supports the view that "the Mrs Zaia's depression which gives rise to her impairment and inability to work was evident when she became an Australian resident."
ANALYSIS OF EVIDENCE AND FINDINGS
The Respondent concedes that the Applicant meets the qualifying conditions in section 94(1)(a)(b) and (c) of the Act, that is, she has an impairment of 20 points or more under the Impairment Tables, and a continuing inability to work. She meets the age criteria at subsection 94(1)(d). The issue for the Tribunal is whether she meets the residency requirements at subsection 94(1)(e)(i), in respect of being an Australian resident at the time when first satisfying subparagraph (c). She does not have 10 years qualifying residence (subparagraph (e)(ii)), nor was she a dependent child of an Australian resident (subparagraph (e)(iii)).
The medical evidence, from her own treating doctor, Dr Benjamin, from medical examinations and assessments by HSA doctors, and from an independent consultant psychiatrist, Dr Prior, shows a consistent history of psychiatric problems commencing well prior to migration to Australia in 1995, and probably from about 1986. Such problems, predominantly being from a condition of depression, encompassed a number of suicidal attempts.
In evidence to the Tribunal, the Applicant confirmed such episodes in Iraq, and confirmed that her condition, in spite of medication, had not improved in this country. The Applicant was also quite explicit in stating to the Tribunal that her condition whilst living in Iraq was such that, even were it allowed by her family, she could not have undertaken work outside the home. The Tribunal understands that in some cultures, women are discouraged from working, or indeed are forbidden to work; the Tribunal accepts the evidence from the Applicant that the latter circumstances applied in her situation. However, whilst appropriate weight must be given to that situation, in respect of the Applicant's 'continuing inability to work' at that time, the Tribunal cannot go beyond the Applicant's own evidence that at no time was her condition such that she could have worked had that been an option.
The matter of defining a two year period (subsection 94(2) of the Act) in which the Applicant was prevented from working prior to arriving in Australia was not addressed to the Tribunal. Nor was the issue that 'work' is defined as 'at least 30 hours per week…' pursuant to subsection 94(5) of the Act. Notwithstanding, the evidence given by the Applicant was all encompassing in that the inability to undertake any work covered a period of some years.
The circumstances in Michael (supra) are somewhat different to those in this matter, the applicant in that case being under 16 years of age at the time of lodging the claim for DSP. Of relevance, Kiefel and Dowsett JJ stated in respect of the meaning of section 94(1)(e)(i):
"We favour the construction of subpar 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of pars 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of par 94(1)(c). It is true that such an exercise will sometimes be difficult to perform. As was recognized by the Full Court in Raizenberg, any exercise of this kind will pose problems. However in most cases, the decision-maker will have only to determine whether or not the impairment as it is at the relevant time was present at the time at which the claimant became an Australian resident. …"
Drummond J further stated the following in respect of the interpretation of section 94(1)(e)(i):
"If the applicant satisfies all four of these criteria (referring to section 94 (1) (a)(b)(c)and (d)), the Secretary must finally determine whether the applicant satisfies the criterion in s94(1)(e)(i). If s 94(1)(e)(i) is read literally, a pension applicant who satisfies s 94(1)(c)(i) will automatically satisfy this final criterion: the only date at which a pension applicant must satisfy s 94(1)(c)(i) is the date on which the decision on the claim is made. But a person must be an Australian resident on that date since only an Australian resident can lodge a valid claim for a disability support pension: s 29(1) the Social Security (Administration) Act (formerly s 110 Social Security Act). It would follow that a person who satisfies s 94(1)(c)(i) necessarily also satisfies the criterion in s 94(1)(e)(i) …
The literal reading of the provision gives it no work to do. It is plain that par (e) of the sub-section was intended by Parliament to ensure that a non-resident who enters Australia with an impairment that is sufficient to satisfy s 94(1)(c)(i) will not be entitled to a disability support pension until the person has resided in Australia for the substantial period of time sufficient to amount to "10 years qualifying Australian residence" within s 94(1)(e)(ii)…
Section 94(1)(e)(i) should therefore be read as requiring the pension applicant to be an Australian resident when the person first suffers the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the two years immediately following that date."
Applying the reasoning by Drummond J, the Applicant in this matter was, on the evidence available to the Tribunal, not an Australian resident when the particular impairment of depression was first suffered. (By concession, the Respondent determined that the impairment was sufficient to prevent the Applicant from doing any work within two years following the date of determination of the pension claim).
The Tribunal must conclude that the Applicant cannot meet the provisions of section 94(1)(e)(i) in that she was not an Australian resident at the time of first satisfying section 94(1)(c)(i), that is having a continuing inability to work.
The decision under review is therefore affirmed.
I certify that the 38 preceding paragraphs are a true copy of
the reasons for the decision herein of Rear Admiral A R Horton AO, MemberSigned: H. Sim .....................................................................................
AssociateDate of Hearing 19 March 202
Date of Decision 13 May 2002
Representative for Applicant Self represented
Advocate for the Respondent Ms Susan Fahey
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