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Administrative Appeals Tribunal of Australia
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[2014] AATA 466
Division
Jason Stojanovski
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Professor R McCallum, Member
Date
8 July 2014
Date of written reasons
10 July 2014
Place
Sydney
The Tribunal sets aside the decision under review and substitutes a decision that the Applicant qualifies for increased portability of his disability support pension under section 1218AAA(1) of the Social Security Act 1991 (Cth).
....................[SGD]..................................................
Professor R McCallum, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – portability of payments – whether Applicant qualifies for unlimited portability – severe impairment – whether no future work capacity – whether prevented from undertaking any work independent of a program of support because unable to work for two hours per week or more – meaning of two hours ‘per’ week – decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth); ss 94(3B), 94(4), 1217, 1218AAA(1)
Social Security (International Agreements) Act 1999 (Cth); Sch 13 Art 2, Art 5
SECONDARY MATERIALS
Centrelink E-Reference Guide
REASONS FOR DECISION
Professor R McCallum, Member
10 July 2014
BACKGROUND
Mr Jason Stojanovski was born in 1984. He contracted Cerebral Palsy at birth. He also suffers from Graves’ disease. He has stiffness in both legs, suffers chronic pain and has difficulty in standing or walking for long periods. Mr Stojanovski is a person of enterprise. With courage and determination he has built up his own small business as a voice-over artist and actor. In Australia, he mainly undertakes voice-over work, that is, he records scripts that he reads out. He has a home studio where he does most of his voice-over work, but he also travels locally – mainly to two studios that are less than ten minutes’ drive from his home. Mr Stojanovski is assisted in his work by his mother, who acts as his agent/ manager and prepares invoices, helps source contracts and otherwise helps manage his business affairs.
In the past, Mr Stojanovski has travelled twice a year to the United States of America to source contracts for work. He usually remains in that country for three months at a time. He uses a wheelchair when flying to and from the United States and is assisted by airport staff. He has chronic pain after these flights and rests for approximately two weeks before starting to source contracts and attend meetings.
Since 13 October 2000, Mr Stojanovski has been in receipt of a Disability Support Pension (DSP). Under the present law, Mr Stojanovski can only receive his DSP for six weeks whilst traveling outside Australia.
Mr Stojanovski seeks review of a decision of the Social Security Appeals Tribunal (SSAT) made on 7 November 2013 that affirmed a decision of an Authorised Review Officer (ARO) made on 4 July 2013. The SSAT held that Mr Stojanovski does not qualify for unlimited portability of his DSP under the Social Security Act 1991 (Cth) (the SS Act). Mr Stojanovski argues that having regard to his severe disability and to his circumstances, he is entitled to unlimited portability of his DSP.
RELEVANT LEGISLATION
Two relevant statutory regimes are in point, the SS Act and the Social Security (International Agreements) Act 1999 (Cth) (the International Agreements Act). I shall deal with these two statutes in turn.
The Social Security (International Agreements) Act 1999
The International Agreements Act facilitates the payment of social security benefits to Australians who reside in countries with which Australia has social security agreements. Schedule 13 of this Act sets out the social security agreement between the governments of Australia and the United States. Article 2 of this agreement states that the agreement applies to the payment of social security to severely disabled persons. Article 5(1) states:
1. Unless otherwise provided in this Agreement, any provision of the laws of a Party which restricts entitlement to or payment of benefits solely because the person resides outside or is absent from the territory of that Party shall not be applicable to the persons who reside in the territory of the other Party.
Although the language of this paragraph is convoluted, it restricts social security payments to Australians who are residents of the United States, and it does not cover visitors to that country. The words, “...any provision of the laws of a Party which restricts entitlement to or payment of benefits solely because the person resides outside or is absent from...” Australia, bring into play section 1217 of the SS Act which provides that Australians may only receive their DSP for up to six weeks of travel outside Australia. In Mr Stojanovski 's circumstances, where he is a visitor, albeit a frequent visitor, to the United States, this agreement does not permit him to receive his DSP beyond the six week limit specified in section 1217. This is because he does not meet the criteria of being ‘resident’ in the United States.
The Social Security Act 1991
The provisions of the SS Act which are applicable to Mr Stojanovski ’s circumstances are complex and require some unpacking. Under item 2 of the Table in section 1217, as an Australian resident and the holder of a DSP, Mr Stojanovski may travel overseas for up to six weeks. In other words he may travel outside of Australia for six weeks and still receive his DSP. Under item 2A of the Table, if a DSP holder is severely disabled, then she or he has unlimited portability. Put briefly, they may travel for unlimited periods outside Australia and still receive a DSP. Mr Stojanovski argues that he is entitled to unlimited portability of his DSP because he is a severely disabled person. This would allow him to receive his DSP for an unlimited period whilst he is in the United States.
The requirements for unlimited portability of DSP are provided in section 1218AAA(1) of the SS Act. Under this provision, the Secretary may make a written determination that a person has unlimited portability of her or his DSP, if all of the four matters which are set out in paragraphs (a), (b), (c) and (d) are satisfied. In other words, the Secretary must reach a state of satisfaction on the four matters set out.
Paragraph (a) requires the person to be in receipt of a DSP. Under paragraph (b), the person’s impairment must be a severe impairment within the meaning of subsection 94(3B) of the Act. Section 94(3B) of the Act states that:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Under paragraph (c), the Secretary must be satisfied that “...the person will have that severe impairment for at least the next 5 years”. Finally, paragraph (d) obliges the Secretary to be satisfied that “...if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years”.
Section 94(4) is lengthy and it states:
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
In other words , section 1218AAA(1)(d) requires that the severe impairment “...would prevent the person from performing any work...” in the open labour market. In order to give guidance to delegates making decisions under section 1218AAA(1), the Secretary has laid down policy in the Centrelink E-reference Guide. This guide is not generally available to the public and is for internal use. E-Ref 102.10480 of the guide states:
‘No future work capacity’ portability provisions
A customer is allowed indefinite portability of Disability Support Pension (DSP) if they are either:
• assessed in Australia as;
• having a 'severe impairment' and that this level of impairment is likely to remain for at least 5 years, and
• having no (less than 2 hours per week) future work capacity independently of an ongoing program of support and that this level is likely to remain for at least 5 years, or
• Assessed as manifestly qualified for DSP under the current manifest guidelines.
For present purposes, it is relevant that the reference to no future work capacity is qualified by the words in parentheses “(less than 2 hours per week)”. Even where a person does perform some work (for less than two hours per week), the Secretary can be satisfied that the person's “..severe impairment would prevent the person from performing any work”.
The Respondent is satisfied that Mr Stojanovski fulfills all of the requirements specified in paragraphs (a), (b) and (c) of s 1218AAA(1). Mr Stojanovski is in receipt of a DSP, his disability is severe within the meaning of paragraph (b) and will almost certainly last throughout his life. The only issue before this Tribunal is whether Mr Stojanovski satisfies the requirement under s1218AAA(1)(d), namely whether he is prevented from undertaking any work as he is unable to perform work for more than 2 hours per week.
THE EVIDENCE
Applicant’s Evidence
Mr Stojanovski attended the hearing in person. He gave his evidence frankly. He impressed me as a person who is determined to overcome the difficulties resulting from his disability. Mr Stojanovski was the only person who gave oral evidence at the hearing.
In his evidence, Mr Stojanovski explained that when sitting or standing for periods of time, his joints become inflamed, and that he suffers pain in his back, hips and legs. When he straightens his legs, often his left kneecap dislocates. He has difficulty in walking, standing and sitting.
Mr Stojanovski left school in year 11 and then went to an acting school. He started working professionally as an actor at age 15 and noticed how accomodating the industry was of people with disabilities. He decided that acting was a career that he could handle in terms of the restrictions resulting from his disability and began building credits. As Mr Stojanovski ’s physical restrictions increased as he aged, he shifted his career focus to voice-overs. He perceives them to be simple yet lucrative and they take less of a toll on his physical well-being. Mr Stojanovski told the Tribunal that the only kind of work he has performed over the last ten years has been acting and voice-over work.
Mr Stojanovski gave details about how he operates as a voice-over actor. His mother usually emails him the script, he prints it out, reads and records it in several ways and then emails the recording back to his mother. He stated that this process normally takes between five and 15 minutes.
Mr Stojanovski told the Tribunal that it would be possible for him to work for three hours in one day, but that this was not sustainable. It takes a physical toll on him and over the following days he would have chronic pain. He said that over the last six months, he has completed three voice-over jobs and one television commercial, for which he was on set for approximately 30 minutes.
It is necessary to mention and to reproduce some of the documentary evidence which was tendered at the hearing.
Medical Evidence
In a letter dated 1 October 2013, Dr Hashmi, Mr Stojanovski 's treating doctor, stated the following (at T19):
I certify that Mr Jason Stojanovski is suffering from cerebral palsy affecting both legs. Has stiffness, spasticity both legs. He suffers from chronic pain which is aggravated by physical work, sitting or standing for extended periods. He cannot work for more than 3-4 hours / week. He can only work for 10 – 15 minutes at a time. When he flies overseas he uses a wheelchair, is helped by (illegible) sits on aisle seat, stands, walks, stretches and it takes him about 2 weeks to recover from the trip.
Patient is trying to find a very specific job that he is trained for and is physically capable of doing / which is very limited in availability because of his medical condition. Please feel free to call me if you have any questions.
In the decision of the ARO dated 4 July 2013(at T18), the ARO mentions that she or he obtained information from Dr Hashmi, presumably by telephone, on 7 June 2013. The ARO states:
Dr Hashmi reported that you are totally and permanently unfit for a full-time job, however, Dr Hashmi did advise the Department that you have the capability to sustain suitable sedentary employment for 1 to 2 days a week.
The SSAT notes that Mr Stojanovski was asked why his treating doctor may have given contradictory evidence about his capacity. Mr Stojanovski told the SSAT that:
...the doctor told him that Centrelink asked him specific questions and did not give him an ability to elaborate. He was not able to explain that while [he] could do some work on a couple of days per week, more than a few hours a week is unsustainable for him.
Mr Stojanovski also told the SSAT that Dr Hashmi had told Centrelink that he could work one to two days per week because he had done so in the past.
On 18 March 2013, a report was completed following a Job Capacity Assessment (JCA) with Mr Stojanovski (at T15). Portion of the remarks of the assessor are as follows:
Mr. Stojanovski is diagnosed with Cerebral Palsy onset 4/9/1984. The diagnosis was confirmed by a neurologist/orthopaedic surgeon as indicated on AUS222. The conditions are fully diagnosed.
Treatment is past present and future, physiotherapy, home based exercises and regular monitoring by Mr Stojanovski 's treating doctors. Mr Stojanovski reports that he only takes pain relief when absolutely necessary. The condition is lifelong and the treating doctor has indicated that it will persist for 5 years and may deteriorate over this time. The condition is considered to be fully treated and stabilised.
Functionally the treating doctor indicates that Mr Stojanovski lacks endurance and has limitation to his walking, seating and standing. Mr Stojanovski reports chronic pain, difficulties walking, sitting and standing. He has difficulties with his gait (observed) which he reports impacts his lower back. Pain impacts sleep and endurance.
The assessor noted that Mr Stojanovski ’s work capacity is reduced, that he has poor endurance, and that his condition is likely to deteriorate, and assessed him as having a baseline work capacity of eight to 14 hours per week with intervention.
In my view, this report does not contain reasoning for this assessment sufficient to support such a conclusion.
THE MEANING OF “LESS THAN 2 HOURS PER WEEK”
In order to ascertain whether Mr Stojanovski 's circumstances satisfy section 1218AAA(1)(d) of the SS Act, it is necessary to determine the meaning of the phrase “less than two hours per week”. These words are few in number which makes my task a difficult one. The key to their interpretation is the preposition “per”. What is meant by “2 hours per week”?
When this matter was raised with the Respondent during the hearing, the Respondent’s representative sought a brief adjournment to seek departmental instructions. When the hearing resumed, the Respondent submitted that these words should be given their ordinary meaning to give effect to the legislative intention of section 1218AAA(1)(d) of the SS Act. It was not expressly an averaging provision.
I agree that this phrase contains ordinary and not technical words, and that it should be given its ordinary meaning. In order to ascertain the ordinary meaning, it is easiest to begin with ascertaining the meaning of the preposition “per”. The Oxford Dictionary states:
I. For. 1. a. In distributive sense: For each——, for every——. Used after a statement of number or quantity to express a rate or proportion, as per day, per dozen, per head, etc. Also (chiefly U.S.): with omission of following noun (expressed in or understood from the context). b. Phrases in this sense used attrib., as per-acre, per-head, per-person, per-share, etc. rare before 20th cent (Oxford Englsih Dictionary (Oxford University Press, 3rd ed, September 2005)).
The Macquarie Dictionary states:
preposition 1. through; by; for each: per annum (by the year), per diem (by the day), per yard (for each yard), etc. 2. through the agency of: Fred Brown per Jane Smith. [Latin. Compare per-] (Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, October 2013)).
In my view, these words do not mean that where a person performs work for two hours in a particular week, that person can never satisfy section 1218AAA(1)(d) of the SS Act. If the Secretary had wished this to be the test, the Secretary would have used the indefinite article “a” and not the preposition “per”. In my view, the preposition “per” imports an element of averaging into the phrase “2 hours per week”. In Mr Stojanovski 's circumstances, it is not necessary for me to determine the outer limits of any averaging.
DOES MR STOJANOVSKI SATISFY SECTION 1218AAA(1)(D) OF THE SS ACT?
While Mr Stojanovski gave evidence that he could work for three hours in any day, he said that this was not sustainable as he would be in chronic pain over the succeeding days. Mr Stojanovski also said that over the last six months, he has completed three voice-over jobs, which take approximately five to 10 minutes to complete, and one television commercial, for which he was on set for approximately 30 minutes. This amounts to a collective total of less than two hours work undertaken in the last six months.
Mr Stojanovski ’s evidence regarding his capacity to undertake these brief periods of work correlates with the evidence provided by his treating doctor. In his letter of 1 October 2013, which is set out earlier in these reasons, Dr Hashmi states Mr Stojanovski “cannot work for more than 3-4 hours / week. He can only work for 10 – 15 minutes at a time”. The key phrase here is that Mr Stojanovski can only work for ten to 15 minutes at a time. Later in the letter, Dr Hashmi states, “Patient is trying to find a very specific job that he is trained for and is physically capable of doing / which is very limited in availability because of his medical condition”.
No evidence was adduced by the Respondent as to what other type of sedentary employment could be undertaken by Mr Stojanovski .
If there is any conflict between the evidence provided by Mr Stojanovski and Dr Hashmi’s letter, on the one hand, and the report of the job capacity assessor, on the other hand, I prefer the evidence of Mr Stojanovski and Dr Hashmi. As stated above, the assessor’s report does not contain sufficient reasons and in such circumstances the evidence provided by the treating doctor must be given greater weight.
Mr Stojanovski ’s circumstances are highly unusual, in that despite his disability and through his acting and voice skills he is able to perform remunerative work over very short periods of time. His voice-overs take from five to 15 minutes to complete, and even his latest television commercial took no more than 30 minutes. He has only performed acting work over the last ten years and the most recent work he has undertaken amounts to far less than two hours per week. In my view, it is unlikely that Mr Stojanovski 's unusual situation will be replicated by others. He has utilised his acting and voice skills to carve out a career despite the severe limitations placed upon him by his disability.
For these reasons, I conclude Mr Stojanovski ’s circumstances satisfy section 1218AAA(1)(d) of the SS Act as he is unable to perform work for more than two hours per week.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that Mr Stojanovski qualifies for increased portability of his DSP under section 1218AAA(1) of the SS Act.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum, Member
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Associate
Dated 10 July 2014
Date of hearing
7 July 2014
Applicant
In person
Solicitors for the Respondent
Department of Human Services
www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2014/466.html?stem=0&synonyms=0&query=Stojanovski
