Post by Banjo on Oct 6, 2016 7:36:09 GMT 7
Rees and Secretary, Department of Social Services (Social services second review) [2016] AATA 732 (21 September 2016)
Last Updated: 23 September 2016
Ms Jennifer Rees (the “Applicant”) is an Australian citizen. She has previously qualified for the Disability Support Pension (“DSP”) on 13 June 2014.[1] While receiving the DSP, the Applicant made several trips to New Zealand, eventually forming a view to settle there. The present matter essentially involves an application to facilitate the payment of the DSP to the Applicant on an indefinite basis while she resides in New Zealand.
Issues for Determination
The Respondent submitted that the issues for determination comprised[5]:
Whether the Applicant is severely disabled for the purposes of Schedule 3 of the Social Security (International Agreements) Act 1999 (the “International Agreements Act”);
Whether a determination should be made that the Applicant’s maximum portability period for the DSP is an unlimited period; and
Whether there is any other basis to extend the Applicant’s maximum portability for the DSP.
The resolution of these issues distils into three primary considerations:
Does the Agreement on Social Security between the Government of Australia and the Government of New Zealand (the “Agreement”) apply in the Applicant’s case?
Does the Applicant satisfy the criteria for unlimited portability for payment of the DSP whilst she resides in New Zealand?
Should the maximum period of portability be extended for the Applicant?
ISSUE 1: DOES THE AUSTRALIA – NEW ZEALAND AGREEMENT APPLY TO THE APPLICANT?
Article 2(2) of the Agreement relevantly provides that the recipient of an Australian DSP payment can continue to receive that benefit in New Zealand provided:
The person is severely disabled;
The person was a resident of either Australia or New Zealand at the date of severe disablement; and
The person, prior to the date of severe disablement, was residing in the other country (in this case, New Zealand) for a period of not less than one year at any time.
Issue 1.1: Is the Applicant severely disabled?
Article 1(l) of the Agreement defines severe disablement in terms of a person who is unable to work for at least the next two years and unable to benefit within the next two years from a participation in a rehabilitation program. There is another provision for if the person is permanently blind. That is not the case here.
A person is severely disabled if their impairment prevents them from:
Doing any work for eight or more hours a week for the next two years; and
Benefiting from training, education or rehabilitation to the extent of being able to work at least eight hours per week.[6]
I accept the Respondent’s contention that the Applicant is not severely disabled in accordance with Article 1(l) of the Agreement. The evidence points to a convincing likelihood that she is capable of working for at least 8 hours per week within the next two years. There is no evidence to rebut a presumption that the Applicant would benefit from a program of rehabilitation to facilitate her return to work for at least 8 hours per week. I accept this contention for the reasons below.
The Job Capacity Assessment dated 13 October 2014 indicated that the Applicant had a baseline and future work capacity of 8-14 hours per week, although noting the Applicant would require short work shifts where she can move more freely and make frequent postural changes.[7] This was reiterated in the further Job Capacity Assessment dated 31 August 2015.[8]
Up until June 2014, the Applicant worked as a bus driver for refugees.[9] The Applicant said at the hearing that she had terminated her full-time employment because the nature of the work was unsustainable given her condition. However, the Applicant admitted she had not made any attempts to find work of a part-time or varied nature since leaving that employment.
Central to the Applicant’s case was a report from Dr Gabel dated 16 May 2016. I agree with the Respondent’s analysis of this report. Although Dr Gabel initially opines that the Applicant is unable to carry out more than 8 hours of work per week in the next two years, that opinion is predicated on the Applicant performing prolonged activities such as sitting, bending, lifting. I accept the Respondent’s contention that there is and would be no requirement for the Applicant to do such prolonged activity, but rather activities within her functional abilities and capacities, for a period of 8-14 hours per week.[10]
I further accept the Respondent’s contention that Dr Gabel’s observation of the Applicant’s current state may have some relevance, but such relevance is outweighed by the Applicant’s capacity to undertake work within two years from the date of claim or date of cancellation.[11] I therefore assign diminished weight to the opinion of Dr Gabel in circumstances where little or no justification or basis of her opinion was provided.
I find that the Applicant is not severely disabled for the purposes of Article 1(l) of the Agreement because the Applicant is capable of working at least 8 hours per week.
Therefore, I find that the Applicant does not satisfy the first abovementioned criteria under Article 2(2) of the Agreement. It is therefore unnecessary to consider whether she was resident in Australia or New Zealand at the time of severe disablement, or whether she resided in the other country for at least 12 months prior to the date of severe disablement.
ISSUE 2: DOES THE APPLICANT QUALIFY FOR UNLIMITED PORTABILITY?
Section 1217 of the Act provides that payment for the DSP whilst the recipient is outside Australia (“portability period”) is limited to a total of 28 days (whether consecutive or not) in a 12 month period[12].
It is not disputed that the Applicant was outside Australia from 18 February 2015 to 11 March 2015; then from 30 March 2015 until 13 April 2015; then from 23 October 2015 to 7 February 2016; then from 8 February 2016 until 17 February 2016; and then indefinitely from 19 February 2016[13].
The Applicant’s DSP was originally suspended by the Department on 7 April 2015 because she had been overseas for a total period greater than 4 weeks in the preceding 12 months.[14]
Section 1218AAA(1) of the Act allows the Secretary to determine that a person’s maximum portability period for the DSP can be for an unlimited period provided all of the following factors exist:
The person is receiving the DSP;
The person’s impairment is a severe impairment (within the meaning of subsection 94(3B) of the Act);
The person’s severe impairment will persist for the next five years; and
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) of the Act) within the next 5 years.
I accept that the Applicant was receiving the DSP prior to her departure from Australia.
Section 94(3B) of the Act defines a severe impairment as an impairment which attracts 20 points or more under a single Impairment Table in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
It is not in dispute that the Applicant has 20 impairment points for her chronic back pain condition under Table 4.[15]
Additionally, it is accepted that the Applicant’s severe impairment will persist for more than 5 years.[16]
According to section 94(4) of the Act, a person is treated as doing work independently of a program of support if, to do the work, the person:
is unlikely to need a program of support; or
is likely to need a program of support provided occasionally; or
is likely to need a program of support that is not ongoing.
The Respondent contends that the Applicant is capable of working for at least 8 hours per week.[17]
In accordance with my finding in paragraph 15 of these reasons, I am satisfied that the Applicant is capable of working for at least 8 hours per week.
Therefore, I am not satisfied that the Applicant meets the criteria in section 1218AAA of the Act for unlimited portability of the DSP.
ISSUE 3: IS THERE SCOPE TO EXTEND THE APPLICANT’S MAXIMUM PORTABILITY PERIOD?
Section 1218C(1) of the Act gives rise to a discretion to extend a maximum portability period if the person is unable to return to Australia because of:
a serious accident involving the person or a family member of the person;
a serious illness of the person or a family member of the person;
the hospitalisation of the person or a family member of the person;
the death of a family member of the person;
the person's involvement in custody proceedings in the country in which the person is located;
a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
robbery or serious crime committed against the person or a family member of the person;
a natural disaster in the country in which the person is located;
political or social unrest in the country in which the person is located;
industrial action in the country in which the person is located; or
a war in the country in which the person is located.
The Applicant conceded at the SSCSD review that section 1218C of the Act did not apply to her.[18]
I concur with the Respondent’s submission that none of the specified events in section 1218C of the Act apply in this case such as to prevent the Applicant from returning to Australia.[19]
CONCLUSION
I therefore find that (1) the Applicant is not severely disabled for the purposes of Schedule 3 of the International Agreements Act; (2) the Applicant does not qualify for unlimited portability for DSP payments; and (3) there is no other basis to extend the Applicant’s maximum portability for DSP.
The decision[20] under review is affirmed. (Appeal Lost)
www.austlii.edu.au/au/cases/cth/AATA/2016/732.html
Last Updated: 23 September 2016
Ms Jennifer Rees (the “Applicant”) is an Australian citizen. She has previously qualified for the Disability Support Pension (“DSP”) on 13 June 2014.[1] While receiving the DSP, the Applicant made several trips to New Zealand, eventually forming a view to settle there. The present matter essentially involves an application to facilitate the payment of the DSP to the Applicant on an indefinite basis while she resides in New Zealand.
Issues for Determination
The Respondent submitted that the issues for determination comprised[5]:
Whether the Applicant is severely disabled for the purposes of Schedule 3 of the Social Security (International Agreements) Act 1999 (the “International Agreements Act”);
Whether a determination should be made that the Applicant’s maximum portability period for the DSP is an unlimited period; and
Whether there is any other basis to extend the Applicant’s maximum portability for the DSP.
The resolution of these issues distils into three primary considerations:
Does the Agreement on Social Security between the Government of Australia and the Government of New Zealand (the “Agreement”) apply in the Applicant’s case?
Does the Applicant satisfy the criteria for unlimited portability for payment of the DSP whilst she resides in New Zealand?
Should the maximum period of portability be extended for the Applicant?
ISSUE 1: DOES THE AUSTRALIA – NEW ZEALAND AGREEMENT APPLY TO THE APPLICANT?
Article 2(2) of the Agreement relevantly provides that the recipient of an Australian DSP payment can continue to receive that benefit in New Zealand provided:
The person is severely disabled;
The person was a resident of either Australia or New Zealand at the date of severe disablement; and
The person, prior to the date of severe disablement, was residing in the other country (in this case, New Zealand) for a period of not less than one year at any time.
Issue 1.1: Is the Applicant severely disabled?
Article 1(l) of the Agreement defines severe disablement in terms of a person who is unable to work for at least the next two years and unable to benefit within the next two years from a participation in a rehabilitation program. There is another provision for if the person is permanently blind. That is not the case here.
A person is severely disabled if their impairment prevents them from:
Doing any work for eight or more hours a week for the next two years; and
Benefiting from training, education or rehabilitation to the extent of being able to work at least eight hours per week.[6]
I accept the Respondent’s contention that the Applicant is not severely disabled in accordance with Article 1(l) of the Agreement. The evidence points to a convincing likelihood that she is capable of working for at least 8 hours per week within the next two years. There is no evidence to rebut a presumption that the Applicant would benefit from a program of rehabilitation to facilitate her return to work for at least 8 hours per week. I accept this contention for the reasons below.
The Job Capacity Assessment dated 13 October 2014 indicated that the Applicant had a baseline and future work capacity of 8-14 hours per week, although noting the Applicant would require short work shifts where she can move more freely and make frequent postural changes.[7] This was reiterated in the further Job Capacity Assessment dated 31 August 2015.[8]
Up until June 2014, the Applicant worked as a bus driver for refugees.[9] The Applicant said at the hearing that she had terminated her full-time employment because the nature of the work was unsustainable given her condition. However, the Applicant admitted she had not made any attempts to find work of a part-time or varied nature since leaving that employment.
Central to the Applicant’s case was a report from Dr Gabel dated 16 May 2016. I agree with the Respondent’s analysis of this report. Although Dr Gabel initially opines that the Applicant is unable to carry out more than 8 hours of work per week in the next two years, that opinion is predicated on the Applicant performing prolonged activities such as sitting, bending, lifting. I accept the Respondent’s contention that there is and would be no requirement for the Applicant to do such prolonged activity, but rather activities within her functional abilities and capacities, for a period of 8-14 hours per week.[10]
I further accept the Respondent’s contention that Dr Gabel’s observation of the Applicant’s current state may have some relevance, but such relevance is outweighed by the Applicant’s capacity to undertake work within two years from the date of claim or date of cancellation.[11] I therefore assign diminished weight to the opinion of Dr Gabel in circumstances where little or no justification or basis of her opinion was provided.
I find that the Applicant is not severely disabled for the purposes of Article 1(l) of the Agreement because the Applicant is capable of working at least 8 hours per week.
Therefore, I find that the Applicant does not satisfy the first abovementioned criteria under Article 2(2) of the Agreement. It is therefore unnecessary to consider whether she was resident in Australia or New Zealand at the time of severe disablement, or whether she resided in the other country for at least 12 months prior to the date of severe disablement.
ISSUE 2: DOES THE APPLICANT QUALIFY FOR UNLIMITED PORTABILITY?
Section 1217 of the Act provides that payment for the DSP whilst the recipient is outside Australia (“portability period”) is limited to a total of 28 days (whether consecutive or not) in a 12 month period[12].
It is not disputed that the Applicant was outside Australia from 18 February 2015 to 11 March 2015; then from 30 March 2015 until 13 April 2015; then from 23 October 2015 to 7 February 2016; then from 8 February 2016 until 17 February 2016; and then indefinitely from 19 February 2016[13].
The Applicant’s DSP was originally suspended by the Department on 7 April 2015 because she had been overseas for a total period greater than 4 weeks in the preceding 12 months.[14]
Section 1218AAA(1) of the Act allows the Secretary to determine that a person’s maximum portability period for the DSP can be for an unlimited period provided all of the following factors exist:
The person is receiving the DSP;
The person’s impairment is a severe impairment (within the meaning of subsection 94(3B) of the Act);
The person’s severe impairment will persist for the next five years; and
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) of the Act) within the next 5 years.
I accept that the Applicant was receiving the DSP prior to her departure from Australia.
Section 94(3B) of the Act defines a severe impairment as an impairment which attracts 20 points or more under a single Impairment Table in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
It is not in dispute that the Applicant has 20 impairment points for her chronic back pain condition under Table 4.[15]
Additionally, it is accepted that the Applicant’s severe impairment will persist for more than 5 years.[16]
According to section 94(4) of the Act, a person is treated as doing work independently of a program of support if, to do the work, the person:
is unlikely to need a program of support; or
is likely to need a program of support provided occasionally; or
is likely to need a program of support that is not ongoing.
The Respondent contends that the Applicant is capable of working for at least 8 hours per week.[17]
In accordance with my finding in paragraph 15 of these reasons, I am satisfied that the Applicant is capable of working for at least 8 hours per week.
Therefore, I am not satisfied that the Applicant meets the criteria in section 1218AAA of the Act for unlimited portability of the DSP.
ISSUE 3: IS THERE SCOPE TO EXTEND THE APPLICANT’S MAXIMUM PORTABILITY PERIOD?
Section 1218C(1) of the Act gives rise to a discretion to extend a maximum portability period if the person is unable to return to Australia because of:
a serious accident involving the person or a family member of the person;
a serious illness of the person or a family member of the person;
the hospitalisation of the person or a family member of the person;
the death of a family member of the person;
the person's involvement in custody proceedings in the country in which the person is located;
a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
robbery or serious crime committed against the person or a family member of the person;
a natural disaster in the country in which the person is located;
political or social unrest in the country in which the person is located;
industrial action in the country in which the person is located; or
a war in the country in which the person is located.
The Applicant conceded at the SSCSD review that section 1218C of the Act did not apply to her.[18]
I concur with the Respondent’s submission that none of the specified events in section 1218C of the Act apply in this case such as to prevent the Applicant from returning to Australia.[19]
CONCLUSION
I therefore find that (1) the Applicant is not severely disabled for the purposes of Schedule 3 of the International Agreements Act; (2) the Applicant does not qualify for unlimited portability for DSP payments; and (3) there is no other basis to extend the Applicant’s maximum portability for DSP.
The decision[20] under review is affirmed. (Appeal Lost)
www.austlii.edu.au/au/cases/cth/AATA/2016/732.html
