Zavrski; Secretary, Department of Social Services, and (Social services second review)

Zavrski; Secretary, Department of Social Services, and (Social services second review) [2017] AATA 1587 (14 September 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1662
Re:Secretary, Department of Social Services
APPLICANT

AndJasmina Zavrski
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:14 September 2017
Date of written reasons: 29 September 2017
Place:Brisbane

I set aside the decision of the Social Services and Child Support division of the Administrative Appeals Tribunal dated 14 February 2017 and substitute a decision that the respondent was not qualified for disability support pension at the date of her claim on 1 April 2016 or in the 13 weeks thereafter.
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Deputy President Dr P McDermott RFD
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Eligibility – Whether respondent entitled to disability support pension – Where respondent is medically qualified – Whether respondent satisfies Australian residence requirements – Whether respondent satisfies qualifying residence exemption – Decision under review set aside and substituted.
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 23, 94
SECONDARY MATERIALS
Social (Security Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
29 September 2017

This application for review concerns the decision of the Social Services and Child Support division of the Administrative Appeals Tribunal (“AAT1”) dated 14 February 2017 which set aside the decision of the department to reject a claim for disability support pension (“DSP”).*
BACKGROUND
The respondent lodged a claim for DSP on 1 April 2016. On 21 June 2016 a departmental officer ruled that the respondent did not qualify for DSP as she did not fulfil the residency requirements for DSP.
On 1 July 2016 the respondent requested a review of the decision. On 21 November 2016 a Centrelink Authorised Review Officer (“ARO”) reviewed the decision and affirmed the original decision of the department.
After the decision of the AAT1 on 14 February 2017, the applicant made an application to this Tribunal on 22 March 2017 to set aside that decision.
The respondent’s carer, through an interpreter, raised the matter just prior to closing submissions during the hearing that the respondent believed Legal Aid Queensland (“Legal Aid”) was due to represent the respondent. The Tribunal clarified with the respondent’s carer that Legal Aid had been involved with the respondent. The Tribunal indicated there was a note on our file from 28 June 2017 that Legal Aid had consulted with the respondent. The note indicated that no grant of aid had been made, at that stage. The Tribunal undertook a pre-hearing check with the respondent’s carer, and members of Tribunal staff spoke to the respondent’s carer on the day, prior to commencement of the hearing, during which times the respondent’s carer did not mention any involvement of Legal Aid. Further, the Tribunal was not contacted by Legal Aid at any time after 28 June 2017 and before the hearing held on 14 September 2017 and as such there was no indication that a grant of aid had been given to the respondent or that Legal Aid would represent the respondent.
LEGISLATION
The legislation relevant here for determining eligibility for DSP is the Social Security Act 1991 (the Act).
Section 94 of the Act prescribes the qualification criteria for disability support pension:
94 Qualification for disability support pension
(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i) the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;
(ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;
(iii) if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; 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.
Section 94(1) of the Act provides that a person qualifies for DSP if the person has a physical, intellectual or psychiatric impairment, the person’s impairment is 20 points or more under the Impairment Tables and the person has a continuing inability to work.
Section 7 of the Act sets out the definitions for Australian residence.
7 Australian residence definitions
…
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
…
(6) A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement, a seniors health card or a health care card if, and only if, the person:
(a)    resides in Australia; and
(b)    is either:
(i) a refugee; or
(ii) a former refugee.
(6AA) A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card if, and only if, the person:
(b)     was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(f)     holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.
(6B)A person is a refugee for the purposes of this section if the person:
(a) is taken, under the Migration Reform (Transitional Provisions) Regulations, to be the holder of a transitional (permanent) visa because the person was, immediately before 1 September 1994, the holder of:
(i)a visa or entry permit that fell within Division 1.3--Group 1.3 (Permanent resident (refugee and humanitarian) (offshore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(ii)a visa or entry permit that fell within Division 1.5--Group 1.5 (Permanent resident (refugee and humanitarian) (on-shore)) in Part 1 of Schedule 1 to the Migration (1993) Regulations as then in force; or
(b)    was, immediately before 1 February 1993, the holder of a visa or entry permit of a class prescribed under the Migration Regulations as then in force that corresponds to a visa or entry permit referred to in subparagraph (a)(i) or (ii); or
(c) is the holder of:
(i)a permanent protection visa; or
(ii)    a permanent visa of a class referred to in the Table at the end of this subsection; or
(iii)    a permanent visa of a class referred to in a declaration of the Minister under section 25 that is in force.
Section 23 of the Act contains the dictionary, in which the terms “social security benefit” and “social security entitlement” are defined.
social security benefit means:
(aa) widow allowance; or
                  (aab) youth allowance; or
                  (aac) austudy payment; or
   (a) newstart allowance; or
   (c) sickness allowance; or
   (d) special benefit; or
   (e) partner allowance; or
                    (ea) a mature age allowance under Part 2.12B; or
   (f) benefit PP (partnered); or
   (g) parenting allowance (other than non‑benefit allowance).
social security entitlement means:
(a) an age pension; or
(b) a disability support pension; or
   (c) a wife pension; or
   (d) a carer payment; or
   (e) a parenting payment; or
   (f) a widow B pension; or
   (g) a widow allowance; or
                   (ha) a youth allowance; or
                   (hb) an austudy payment; or
   (i) a job search allowance; or
   (j) a newstart allowance; or
   (k) a mature age allowance; or
   (l) a mature age partner allowance.
QUALIFICATION UNDER SECTION 94
In this case, there is no issue that the respondent is medically qualified as she has a psychiatric impairment due to her mental health condition, which has been rated as an impairment of 30 points under the Impairment Tables contained in Social (Security Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The applicant quite properly acknowledges that the respondent meets the requirements of section 94(1)(a), (b) and (c) of the Act.
The respondent also satisfies section 94(1)(d) of the Act which relates to the age requirement.
I must determine whether the respondent satisfies section 94(1)(e) of the Act.
On first tier review, the Tribunal worked through the various provisions of the Act.
The medical evidence before the Tribunal is relevant for the purposes of section 94(1)(e) of the Act.
I look first at section 94(1)(e)(i) which states that an applicant for DSP must be an Australian resident.
The meaning of ‘Australian resident’, which has the meaning given to it under section 7(2), includes a person who is the holder of a permanent resident visa. Therefore the respondent is an Australian resident for the purposes of the Act.
One of the issues I must determine is whether the respondent was an Australian resident at the time when she satisfied section 94(1)(c), that is, when the respondent has a continuing inability to work.
The medical evidence is consistent, stating that the date of onset of the respondent’s mental health conditions was in 1999. This is clear from the report of Dr Zoran Protulipac dated 7 August 2016.
There are various other documents in evidence that confirm the date of onset including medical certificates dated 8 March 2016[1], 24 May 2016[2] and 28 June 2016[3]. There is also the letter of Dr Ivan Lakicevic on 28 June 2016[4].
[1] Exhibit A, T-documents, T9 at pp. 146-147
[2] Exhibit A, T-documents, T9 at p. 148
[3] Exhibit A, T-documents, T9 at pp. 149-150
[4] Exhibit A, T-documents, T9 at pp. 74-75
The report of Dr Protulipac, a clinical psychologist, outlines that the respondent became seriously mentally ill in 1999 and, crucially, he states that there is ample evidence she has been unable to function in most regards, apart from very light housework, since 2005. She has never worked in Australia and has received government assistance since migrating to Australia. Her husband was appointed the respondent’s carer. She requires assistance caring for herself and constant monitoring.
The clinical psychologist assessment states that the respondent has been unable to function in most respects since 2005; this indicates that the respondent’s continuing inability to work arose well before the respondent became an Australian resident on 5 July 2013.
On this basis, the respondent does not satisfy section 94(1)(e)(i) of the Act.
I next must examine section 94(1)(e)(ii) of the Act in order to determine whether the respondent satisfies this part of the section in order to qualify for DSP.
Movement records of the respondent in evidence[5] indicate that the respondent first entered Australia on 5 July 2013. On this basis, it is clear that the respondent does not satisfy the 10 year residence requirement. The respondent came to Australia on a permanent partner visa and does not hold a protection visa as outlined in section 7(6B) of the Act. The respondent does not satisfy the qualifying residence exemption for a social security pension under section 7(6) of the Act as she is not a refugee or a former refugee.
[5] Exhibit A, T-documents, T9 at pp. 190-191
On this basis, the respondent does not satisfy section 94(1)(e)(ii) of the Act.
Welfare Rights Centre made a submission to the AAT1 that the respondent is eligible for DSP in reliance on section 7(6AA)(b) of the Act.
It is also set out in that provision that a person may be eligible for the qualifying residence exemption if they are the family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia. The respondent’s husband and carer is the holder of this class of visa, and as such, the respondent would be eligible for a qualifying residence exemption with respect to a “social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card” (see section 7(6AA) of the Act). The difficulty faced by the respondent is that a “social security benefit” is defined in the dictionary at section 23 of the Act, and that definition does not include DSP. This was not appreciated by the Welfare Rights Centre in their submission to the AAT1.
I therefore find that the respondent does not have a qualifying residence exemption which would enable her to obtain DSP. She does not satisfy section 7(6AA)(b) of the Act for a social security benefit. I do not have any authority under the Act to grant DSP in these circumstances.
CONCLUSION
At the time of the claim for DSP on 1 April 2016 and in the thirteen week qualifying period thereafter, the respondent did not qualify for DSP.
DECISION
I set aside the decision of the AAT1 dated 14 February 2017 and substitute a decision that the respondent was not qualified for disability support pension at the date of her claim on 1 April 2016 or in the 13 weeks thereafter.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 29 September 2017

Date of hearing: 14 September 2017

Applicant: In person

Advocate for the Respondent: Department of Human Services

[2017] AATA 1587

14 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	14 September 2017
Applicant:	In person
Advocate for the Respondent:	Department of Human Services