Post by Banjo on Dec 1, 2014 10:52:34 GMT 7
Jones and Secretary, Department of Social Services [2014] AATA 885 (28 November 2014)
Last Updated: 28 November 2014
Mark Jones
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Ms A F Cunningham, Senior Member
Date
28 November 2014
Place
Hobart
The decision under review is affirmed.
........................................................................
Ms A F Cunningham, Senior Member
CATCHWORDS
Social Security - disability support pension - applicant overseas - whether entitled to indefinite portability - no severe impairment - decision under review affirmed
LEGISLATION
Social Security Act 1991 (the Act)
Administrative Appeals Tribunal Act 1975
CASES
Anderson and SDSS (2013) AATA 915
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
REASONS FOR DECISION
The applicant, Mark Jones seeks the review of a decision made by Centrelink on 20 February 2014 that he was not entitled to indefinite portability of his disability support pension (DSP). Mr Jones had been paid DSP for a period of six weeks up until 10 December 2013 following his departure from Australia. Centrelink’s decision was affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal on 17 June 2014.
Mr Jones has not returned to Australia since his departure on 29 October 2013 and resides in the Philippines. The hearing was conducted by way of telephone link to Mr Jones in the Philippines who appeared on his own behalf and gave oral evidence. Mr Jones had forwarded a written submission and a bundle of documents in support of his application for review. Mr Sparkes appeared on behalf of the Secretary and tendered the T documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Mr Jones’s DSP was suspended and then cancelled with effect from 10 December 2013 as he had remained outside of Australia for a period of more than six weeks. Centrelink determined that Mr Jones did not satisfy the relevant provisions for indefinite portability because he had not been assessed as severely impaired.
In his application for review Mr Jones contends that he was not advised of the portability rules prior to departing Australia and submits that the Job Capacity Assessment Report was not correctly applied in assessing whether he is severely impaired.
On behalf of the Secretary it is contended that the original decision not to extend portability beyond six weeks was correct and that the applicant did not meet the provisions for indefinite portability of DSP.
PORTABILITY RULES
The law governing the payment of pension benefits outside of Australia is contained in the Social Security Act 1991 (the Act). As there is no international agreement in place with the Philippines, Mr Jones’s portability is to be determined in accordance with the provisions of the Act.
Section 1217 provides that a person in receipt of DSP and who is an Australian resident has a maximum portability period of six weeks. This provision also provides that an indefinite portability applies to a DSP recipient if they satisfy the requirements of either section 1218AA (terminally ill) or section 1218AAA (no work capacity).
Section 1218C provides that a person’s portability period may be extended when a person is unable to return to Australia because of a specified event which arises during the initial portability period. This provision has no application in Mr Jones’s circumstances.
It was not contended nor was there any evidence that Mr Jones suffers from a terminal illness. The unlimited portability provisions in section 1218AA therefore do not apply.
Section 1218AAA provides for unlimited portability in the following circumstances:
“(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is 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.”
CONSIDERATION
For Mr Jones to qualify for unlimited portability of his DSP he must satisfy the qualifying circumstances set out in section 1218AAA (1). He satisfies the provisions of subsection (a) as he was in receipt of DSP at the relevant time.
Mr Jones must also satisfy the requirement that his impairment is a severe impairment within the meaning of subsection 94(3B) which requires an impairment rating of 20 points or more and further, that the severe impairment will continue for at least the next five years.
Subsection (1)(d) requires that the person have no work capacity in the next five years. This has been held to mean that the person can do less than two hours of work a week. (See Anderson and SDSS ( 2013) AATA 915).
The medical conditions which are the subject of Mr Jones’s application are osteoarthritis (right ankle), drug dependence and spondylosis.
On 31 October 2013 a Job Capacity Assessment Report (JCA Report) was completed which found that each of Mr Jones’s three conditions was permanent such as to attract an impairment rating under the Impairment Tables. The recommended rating for osteoarthritis of the right ankle assessed under Impairment Table 3 - lower limb function, was 10 points. The recommended rating for spondylosis assessed under Impairment Table 4 - spinal function, was 10 points. The recommended rating for drug dependence assessed under Impairment table 6 -functioning related to alcohol, drug and other, was five points.
The JCA report also assessed Mr Jones’s work capacity within the next two years at between zero and seven hours with interventions which included substance abuse assistance/counselling, home assessment/support and activities of daily living assistance.
At the hearing before the Tribunal Mr Jones disputed each of the recommended ratings. Mr Jones referred to the medical report submitted in support of this application for his DSP completed by Dr Winstanley on 30 September 2013. On page 5 of the report Dr Winstanley had reported that the functional impact of Mr Jones’s ankle condition was expected to last for more than five years and was not expected to improve within the next five years. There was no reference by Dr Winstanley to Mr Jones’s work capacity in the report.
It was Mr Jones’s evidence that he has not worked since November 2012 when he gave up his work as a tractor driver due to the impact of his medical conditions. He currently lives on his own in an apartment in the Philippines. Mr Jones said that he spends large amounts of his time at a computer, listening to music and watching movies. He explained his daily routine. Although he is able to self-care and wash himself, Mr Jones described significant difficulties with general mobility and requires the use of a bamboo cane. Mr Jones occasionally visits a friend’s house and uses a public vehicle to go shopping. He has difficulty walking on uneven ground and does not visit the larger shops because they are too crowded.
Mr Jones confirmed that he is able to remain seated for at least 10 minutes and can stand for 10 minutes with most of his weight on one leg. Included in the written submissions forwarded by Mr Jones were numerous photographs in support of his contentions regarding the disability and disfigurement of his right leg, ankle and foot.
There are three medical reports included in the T documents. The report of Dr Ann Buchan dated 14 August 2013 reports on Mr Jones’s compound fracture to his right ankle and confirms his evidence of pain and deformity. In the history Dr Buchan refers to long-standing damage to Mr Jones’s back from working and lifting heavy loads. She states that it is unlikely that there will be any improvement in the arthritis to Mr Jones’s back and notes that he takes marijuana for pain relief. With respect to impact on ability to function Dr Buchan reports that Mr Jones is unable to stand for work, unable to wear an enclosed shoe and has reduced mobility. She further reports that as a result of his back condition, Mr Jones is unable to lift or carry or stand for long periods. With respect to work capacity she states that “combination of back and ankle problem makes physical and manual work very difficult.”
In Dr Margaret William’s report dated 20 August 2013 regarding Mr Jones’s long-term drug and alcohol dependency, Dr Williams reports that the impact on ability to function means that his memory and concentration, motivation, reliability and interpersonal relationships are affected. She also refers to poor coordination but does not refer to an inability to work within the meaning of the Act.
Dr Winstanley reported on Mr Jones’s osteoarthritis in his right ankle on 30 September 2013 and whilst stating that Mr Jones has difficulty standing, he did not refer to an inability to work.
FINDINGS
There was no dispute and the Tribunal accepts that Mr Jones has the three conditions which are the subject of his application for DSP and that all three conditions are permanent and attract impairment ratings. The issue for the Tribunal to determine is whether any one of the conditions attracts an impairment rating of 20 points under a single table such as to be considered a “severe impairment” under section 1218AAA.
The Introduction to the Tables states that self- reporting of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment. Examples of corroborating evidence for the purposes of the Table include a report from the person’s treating doctor, a medical specialist and/or a report from an allied health practitioner.
Mr Jones’s right ankle osteoarthritis is appropriately assessed under Table 3 - lower limb function. In order to attract an impairment rating of 20 points the person must be unable to either walk around a shopping centre or supermarket without assistance; walk from the car park into a shopping centre or supermarket without assistance; stand up from a sitting position without assistance and require assistance to use public transport. Further, that assistance is required to either move around in or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or move around using walking aids e.g. a quad stick, crutches or walking frame, that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Whilst the Tribunal accepts that this condition poses significant restrictions on Mr Jones’s mobility, these restrictions do not satisfy the above criteria required for an impairment rating of 20 points. Mr Jones lives on his own. He is able to stand from a sitting position without assistance from another person although he does have aids within his residence to assist him with movement from one position to another. He is also able to use public transport to take him to neighbouring shops which he visits on his own. The criteria listed for an impairment rating of 20 points suggests that the person is either in need of a wheelchair or significant walking aids such as a quad stick, crutches or walking frame. Mr Jones’s current aid is a bamboo cane.
For an impairment rating of 20 points under Table 4 - spinal function, a person must be unable to either perform any overhead activities; or turn their head or bend their neck without moving their trunk; or bend their neck or pick up a light object from a desk or table; or remain seated for at least 10 minutes. Mr Jones reported difficulty with overhead activities, turning his head and bending, however he did confirm that he can make and drink a cup of coffee, and is able to remain seated for more than 10 minutes.
Even on Mr Jones’s self- reporting of the functional impact of his conditions, his own evidence does not support an impairment rating of 20 points under either Table 3 or Table 4. It is accordingly unnecessary for me to consider in any detail Mr Jones’s inability to work within the meaning of the Act. It was appropriately conceded on behalf of the Secretary that Mr Jones would not be able to perform any work whilst in a standing position nor would he be able to perform work of a physical nature. As I have already noted, none of the medical reports referred to Mr Jones’s capacity to perform any work. The two Job Capacity Assessment Reports which were undertaken prior to Mr Jones departing Australia, whilst noting Mr Jones’s mobility and endurance limitations, suggested retraining for lighter work and assessed work capacity at between zero and seven hours.
I have carefully considered all of the evidence before me but conclude for the above stated reasons, that Mr Jones fails to satisfy the indefinite portability provisions for DSP because he does not meet the definition of severe impairment under the Act and nor does he meet the work capacity provisions. As Mr Jones is outside of Australia, there can be no consideration of the discretionary extension provisions.
It is clear that Parliament’s intention is to limit payment of social security payments to persons outside of Australia and there have been numerous amendments to the legislation which reflect this intention. From 1 January 2015 further changes to the legislation will mean that portability is reduced to 4 weeks in any 12 month period.
The decision of the Tribunal is accordingly to affirm the decision under review.
www.austlii.edu.au/au/cases/cth/aat/2014/885.html
Last Updated: 28 November 2014
Mark Jones
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Ms A F Cunningham, Senior Member
Date
28 November 2014
Place
Hobart
The decision under review is affirmed.
........................................................................
Ms A F Cunningham, Senior Member
CATCHWORDS
Social Security - disability support pension - applicant overseas - whether entitled to indefinite portability - no severe impairment - decision under review affirmed
LEGISLATION
Social Security Act 1991 (the Act)
Administrative Appeals Tribunal Act 1975
CASES
Anderson and SDSS (2013) AATA 915
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
REASONS FOR DECISION
The applicant, Mark Jones seeks the review of a decision made by Centrelink on 20 February 2014 that he was not entitled to indefinite portability of his disability support pension (DSP). Mr Jones had been paid DSP for a period of six weeks up until 10 December 2013 following his departure from Australia. Centrelink’s decision was affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal on 17 June 2014.
Mr Jones has not returned to Australia since his departure on 29 October 2013 and resides in the Philippines. The hearing was conducted by way of telephone link to Mr Jones in the Philippines who appeared on his own behalf and gave oral evidence. Mr Jones had forwarded a written submission and a bundle of documents in support of his application for review. Mr Sparkes appeared on behalf of the Secretary and tendered the T documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Mr Jones’s DSP was suspended and then cancelled with effect from 10 December 2013 as he had remained outside of Australia for a period of more than six weeks. Centrelink determined that Mr Jones did not satisfy the relevant provisions for indefinite portability because he had not been assessed as severely impaired.
In his application for review Mr Jones contends that he was not advised of the portability rules prior to departing Australia and submits that the Job Capacity Assessment Report was not correctly applied in assessing whether he is severely impaired.
On behalf of the Secretary it is contended that the original decision not to extend portability beyond six weeks was correct and that the applicant did not meet the provisions for indefinite portability of DSP.
PORTABILITY RULES
The law governing the payment of pension benefits outside of Australia is contained in the Social Security Act 1991 (the Act). As there is no international agreement in place with the Philippines, Mr Jones’s portability is to be determined in accordance with the provisions of the Act.
Section 1217 provides that a person in receipt of DSP and who is an Australian resident has a maximum portability period of six weeks. This provision also provides that an indefinite portability applies to a DSP recipient if they satisfy the requirements of either section 1218AA (terminally ill) or section 1218AAA (no work capacity).
Section 1218C provides that a person’s portability period may be extended when a person is unable to return to Australia because of a specified event which arises during the initial portability period. This provision has no application in Mr Jones’s circumstances.
It was not contended nor was there any evidence that Mr Jones suffers from a terminal illness. The unlimited portability provisions in section 1218AA therefore do not apply.
Section 1218AAA provides for unlimited portability in the following circumstances:
“(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is 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.”
CONSIDERATION
For Mr Jones to qualify for unlimited portability of his DSP he must satisfy the qualifying circumstances set out in section 1218AAA (1). He satisfies the provisions of subsection (a) as he was in receipt of DSP at the relevant time.
Mr Jones must also satisfy the requirement that his impairment is a severe impairment within the meaning of subsection 94(3B) which requires an impairment rating of 20 points or more and further, that the severe impairment will continue for at least the next five years.
Subsection (1)(d) requires that the person have no work capacity in the next five years. This has been held to mean that the person can do less than two hours of work a week. (See Anderson and SDSS ( 2013) AATA 915).
The medical conditions which are the subject of Mr Jones’s application are osteoarthritis (right ankle), drug dependence and spondylosis.
On 31 October 2013 a Job Capacity Assessment Report (JCA Report) was completed which found that each of Mr Jones’s three conditions was permanent such as to attract an impairment rating under the Impairment Tables. The recommended rating for osteoarthritis of the right ankle assessed under Impairment Table 3 - lower limb function, was 10 points. The recommended rating for spondylosis assessed under Impairment Table 4 - spinal function, was 10 points. The recommended rating for drug dependence assessed under Impairment table 6 -functioning related to alcohol, drug and other, was five points.
The JCA report also assessed Mr Jones’s work capacity within the next two years at between zero and seven hours with interventions which included substance abuse assistance/counselling, home assessment/support and activities of daily living assistance.
At the hearing before the Tribunal Mr Jones disputed each of the recommended ratings. Mr Jones referred to the medical report submitted in support of this application for his DSP completed by Dr Winstanley on 30 September 2013. On page 5 of the report Dr Winstanley had reported that the functional impact of Mr Jones’s ankle condition was expected to last for more than five years and was not expected to improve within the next five years. There was no reference by Dr Winstanley to Mr Jones’s work capacity in the report.
It was Mr Jones’s evidence that he has not worked since November 2012 when he gave up his work as a tractor driver due to the impact of his medical conditions. He currently lives on his own in an apartment in the Philippines. Mr Jones said that he spends large amounts of his time at a computer, listening to music and watching movies. He explained his daily routine. Although he is able to self-care and wash himself, Mr Jones described significant difficulties with general mobility and requires the use of a bamboo cane. Mr Jones occasionally visits a friend’s house and uses a public vehicle to go shopping. He has difficulty walking on uneven ground and does not visit the larger shops because they are too crowded.
Mr Jones confirmed that he is able to remain seated for at least 10 minutes and can stand for 10 minutes with most of his weight on one leg. Included in the written submissions forwarded by Mr Jones were numerous photographs in support of his contentions regarding the disability and disfigurement of his right leg, ankle and foot.
There are three medical reports included in the T documents. The report of Dr Ann Buchan dated 14 August 2013 reports on Mr Jones’s compound fracture to his right ankle and confirms his evidence of pain and deformity. In the history Dr Buchan refers to long-standing damage to Mr Jones’s back from working and lifting heavy loads. She states that it is unlikely that there will be any improvement in the arthritis to Mr Jones’s back and notes that he takes marijuana for pain relief. With respect to impact on ability to function Dr Buchan reports that Mr Jones is unable to stand for work, unable to wear an enclosed shoe and has reduced mobility. She further reports that as a result of his back condition, Mr Jones is unable to lift or carry or stand for long periods. With respect to work capacity she states that “combination of back and ankle problem makes physical and manual work very difficult.”
In Dr Margaret William’s report dated 20 August 2013 regarding Mr Jones’s long-term drug and alcohol dependency, Dr Williams reports that the impact on ability to function means that his memory and concentration, motivation, reliability and interpersonal relationships are affected. She also refers to poor coordination but does not refer to an inability to work within the meaning of the Act.
Dr Winstanley reported on Mr Jones’s osteoarthritis in his right ankle on 30 September 2013 and whilst stating that Mr Jones has difficulty standing, he did not refer to an inability to work.
FINDINGS
There was no dispute and the Tribunal accepts that Mr Jones has the three conditions which are the subject of his application for DSP and that all three conditions are permanent and attract impairment ratings. The issue for the Tribunal to determine is whether any one of the conditions attracts an impairment rating of 20 points under a single table such as to be considered a “severe impairment” under section 1218AAA.
The Introduction to the Tables states that self- reporting of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment. Examples of corroborating evidence for the purposes of the Table include a report from the person’s treating doctor, a medical specialist and/or a report from an allied health practitioner.
Mr Jones’s right ankle osteoarthritis is appropriately assessed under Table 3 - lower limb function. In order to attract an impairment rating of 20 points the person must be unable to either walk around a shopping centre or supermarket without assistance; walk from the car park into a shopping centre or supermarket without assistance; stand up from a sitting position without assistance and require assistance to use public transport. Further, that assistance is required to either move around in or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or move around using walking aids e.g. a quad stick, crutches or walking frame, that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Whilst the Tribunal accepts that this condition poses significant restrictions on Mr Jones’s mobility, these restrictions do not satisfy the above criteria required for an impairment rating of 20 points. Mr Jones lives on his own. He is able to stand from a sitting position without assistance from another person although he does have aids within his residence to assist him with movement from one position to another. He is also able to use public transport to take him to neighbouring shops which he visits on his own. The criteria listed for an impairment rating of 20 points suggests that the person is either in need of a wheelchair or significant walking aids such as a quad stick, crutches or walking frame. Mr Jones’s current aid is a bamboo cane.
For an impairment rating of 20 points under Table 4 - spinal function, a person must be unable to either perform any overhead activities; or turn their head or bend their neck without moving their trunk; or bend their neck or pick up a light object from a desk or table; or remain seated for at least 10 minutes. Mr Jones reported difficulty with overhead activities, turning his head and bending, however he did confirm that he can make and drink a cup of coffee, and is able to remain seated for more than 10 minutes.
Even on Mr Jones’s self- reporting of the functional impact of his conditions, his own evidence does not support an impairment rating of 20 points under either Table 3 or Table 4. It is accordingly unnecessary for me to consider in any detail Mr Jones’s inability to work within the meaning of the Act. It was appropriately conceded on behalf of the Secretary that Mr Jones would not be able to perform any work whilst in a standing position nor would he be able to perform work of a physical nature. As I have already noted, none of the medical reports referred to Mr Jones’s capacity to perform any work. The two Job Capacity Assessment Reports which were undertaken prior to Mr Jones departing Australia, whilst noting Mr Jones’s mobility and endurance limitations, suggested retraining for lighter work and assessed work capacity at between zero and seven hours.
I have carefully considered all of the evidence before me but conclude for the above stated reasons, that Mr Jones fails to satisfy the indefinite portability provisions for DSP because he does not meet the definition of severe impairment under the Act and nor does he meet the work capacity provisions. As Mr Jones is outside of Australia, there can be no consideration of the discretionary extension provisions.
It is clear that Parliament’s intention is to limit payment of social security payments to persons outside of Australia and there have been numerous amendments to the legislation which reflect this intention. From 1 January 2015 further changes to the legislation will mean that portability is reduced to 4 weeks in any 12 month period.
The decision of the Tribunal is accordingly to affirm the decision under review.
www.austlii.edu.au/au/cases/cth/aat/2014/885.html
