Editors --- "Disability support pension: portability; severe impairment" [2014] SocSecRpr 9; (2014) 16(2) Social Security Reporter, Article 1

• UDRZAL and SECRETARY to the DSS
• Background
• Issues
• Legislation
• Consideration
• Decision

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Disability support pension: portability; severe impairment

UDRZAL and SECRETARY to the DSS

(2014/232)

Decided: 17th April 2014 by PE Hack

Background

Udrzal was a long term recipient of disability support pension (DSP) and he had lived in Bali for a number of years. Under the Social Security Act 1991 (Cth) (the Act) DSP had been ‘portable’ for up to 13 weeks and it was common for recipients who lived in Asia to return to Australia briefly every 13 weeks. From 1 July 2011 the Families, Housing, Community Services & Indigenous Affairs & Other Legislation Amendment (Budget & Other Measures) Act 2011 (Cth) changed the Act by adding the requirement that the person must continue to be an Australian resident in order to remain eligible for DSP

.On 23 January 2013 Udrzal attended the Centrelink Darwin Service Centre where a residency assessment was completed, and he returned to Bali on the same day. Although Udrzal’s visits to Australia were frequent and regular, Centrelink deemed he was a resident of Bali, not Australia, and his DSP was cancelled on 24 January 2013.

Issues

The main issue is whether the cancellation of DSP was correct, whether Udrzal remained qualified for DSP, and whether Udrzal satisfied the requirements of s.1218AAA of the Act.

Legislation

The AAT had held that Udrzal needed to meet s.94 (1) of the Act and then the added requirement of s.94 (1) (ea) which provides:

(1) A person is qualified for disability support pension if:

...

(ea) one of the following applies:

(i) the person is an Australian resident;

(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA (1);

(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a),(b),(c), (d) and (e) exist in relation to the person.

The AAT held that Udrzal was not an Australian resident, that subparagraph (ii) was not met, but queried if it was possible that a determination could be made under s.1218AAA (1) of the Act. That section reads:

(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.

(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:

(a) the person is unable to return to Australia because of either of the following events:

(i) a serious accident involving the person;

(ii) the hospitalisation of the person; and

(b) the person’s portability period for disability support pension had not ended at the time the event occurred.

(3) The Secretary may revoke th e determination if any of the qualifying circumstances ceases to exist.

(4) A determination under subsection (1) is not a legislative instrument.

(5) In this section: work means work:

(a) that is on wages that are at or above the relevant minimum wage; and

(b) that exists in Australia, even if not within the person’s locally accessible labour market

Consideration

Section 1218AAA of the Act requires a severe impairment as defined in s.94(3B). A Job Capacity Assessment (JCA) conducted by an exercise physiologist in October 2013 found that Udrzal had a traumatic brain injury suffered during a stroke in October 2012, which warranted a rating of 20 points on the Impairment Tables. Udrzal had an additional 5 points for another impairment arising from the stroke and he had diabetes, vasculitis and hypertension. For the purposes of this decision, 20 points for the brain injury satisfied the severe impairment requirement.

The Secretary accepted, on 24 January 2013, paragraphs (a), (c) and (d) of s.1218AAA were met:

• Udrzal was, immediately prior to the cancellation decision, receiving disability support pension;

• Udrzal would have the impairment, the traumatic brain injury, for at least the next five years; and

• the impairment would prevent him from performing any work independently of the program of support within that period.

The Secretary argued that a determination under s.1218AAA could not be made at the time of cancellation for three reasons. First, Udrzal was outside Australia when the cancellation decision was made; second, the job capacity assessment was not undertaken in January 2013; thirdly, in January 2013, the impairment, the traumatic brain injury, was not fully diagnosed, treated and stabilised and likely to persist for more than two years and so could not be assigned a rating under the Impairment Tables.

On 24 January 2013, when the cancellation decision was made, Udrzal had returned to Bali. The AAT found that the Act requires that consideration of a s.1218AAA determination precedes the decision to cancel, otherwise, the criteria in s.1218AAA (1)(a) of the Act, that the person be receiving disability support pension, could not be satisfied. The AAT found that the decision maker ought to have considered the application of the unlimited portability provisions at the time of cancellation.

The AAT found that proper ‘public administration requires the making of prompt decisions, all the more so when delay will defeat an otherwise valid claim’. The decision was required on 23 January 2013 when Udrzal was in Australia, or he could have been asked to defer his return to Bali.

Udrzal stated that he was told on 23 January 2013 that a JCA could not be organised for that day. He also statedthat he could have delayed his return to Bali if he had been advised that he would need to have a job capacity assessment.

The Guide to Social Security Law, paragraph 7.1.1.10 suggests that DSP recipients seeking unlimited portability under s.1218AAA (1) ‘are required to undergo a portability assessment that includes the [Job Capacity Assessment] processes’. The AAT held that although a JCA may be ‘desirable’ to inform a determination under s.1218AAA it cannot be a pre-requisite to the determination unless the Act makes it so.

The Department accepted that, by October 2013, Udrzal’s condition was fully treated, fully stabilised and more likely than not to persist for more than two years. However, in January 2013, it was too early to make that determination, because the stroke had occurred only 90 days earlier. The AAT found that Udrzal had a stroke in October 2012. He could not walk unaided, the fine motor functions of his hand were affected and he needed daily physiotherapy. The medical practitioner’s report concluded that the impact of these conditions would persist for more than 5 years and he would have a residual deficit in functioning. The AAT found that Udrzal had undertaken reasonable treatment and was unlikely to gain significant functional improvement.

The AAT stated that ‘what the definition of fully stabilised requires is that

continued treatment is unlikely to result in significant functional improvement to

a level enabling the person to undertake work in the following two years.’

Therefore in January 2013 it could be said that Udrzal’s condition had been fully diagnosed, fully treated and fully stabilised. He had a severe impairment within the meaning of s.94 (3B) of the Act in January 2013 thereby satisfying paragraph (b) of s.1218AAA (1).

Decision

The decision to cancel Udrzal’s DSP was set aside and the matter remitted to the respondent for reconsideration in accordance with a direction that a written determination be made pursuant to s.1218AAA of the Social Security Act 1991 (Cth).

The decision to cancel the applicant’s disability support pension was set aside and a decision made in substitution that the applicant’s disability support pension not be cancelled.

[M.R.]