Miljevic and Department of Social Security [1999] AATA 67 (5 February 1999)

Last Updated: 17 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 67

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T98/57

GENERAL DIVISION )

Re BOZO MILJEVIC

Applicant

And SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

DECISION

Tribunal Ms A F Cunningham (Member)

Date 5 February 1999

Place Hobart

Decision The Tribunal affirms the decision under review.

[Sgd A Cunningham]

Member

CATCHWORDS

Social Security - overseas application - special needs disability support pension - whether severely disabled whilst living in Australia.

Social Security Act 1991 - ss.23(4B), 773

REASONS FOR DECISION

5 February 1999 Ms A F Cunningham (Member)

1. The applicant has appealed a decision of an authorised review officer made on 17 January 1996 which affirmed a decision of a delegate of the Secretary of the Department of Social Security dated 6 February 1995 rejecting his application for a special needs disability support pension. The decision was affirmed by the Social Security Appeals Tribunal ("SSAT") on 1 August 1996.

2. As the applicant currently resides in Croatia both parties to the appeal agreed that it would be heard without the need for either party to appear. The applicant relied on several letters addressed to the Tribunal as well as the "T" documents which inter alia contain a history of the applicant's medical conditions. The respondent provided written submissions, adopting the history of the appeal as set out in the decision of the SSAT at T2, page 12.

3. The applicant's claim is that he became disabled whilst residing in Australia and is in need of financial assistance as he currently lives as a refugee in Croatia and receives no income support.

4. The respondent maintains that the applicant does not qualify for a special needs disability support pension under the relevant legislation as he did not become severely disabled whilst residing in Australia.

5. The applicant resided in Australia from 1967 to 1971, becoming an Australian citizen on 22 February 1971.

6. The "T" documents reveal that he held the following positions of employment:

Ford Motor Company - 11 December 1967 to 14 March 1968.

General Motors Holden - 26 June 1968 to 29 October 1968.

Mental Health Services Junior Staff Club - 31 July 1970 to 8 October 1970

Department of Supply Salisbury - 1 July 1971 to 27 October 1971.

7. The applicant claims that the length of employment for each position was short because of his illness. He says that he continued to work whilst receiving therapy and that on occasions the illness necessitated his leaving his employment to be treated as an in-patient in hospital. He maintains that he received treatment at the Royal Hospitals in Perth, Adelaide and Melbourne and that the therapy he received adversely affected his work performance causing lack of coordination of his movement and making him drowsy. The applicant says that he left Australia because of his illness and returned to Bosnia-Herzegovina to be cared for by his parents and close relatives as he was unable to look after himself on his own.

8. The "T" documents reveal that whilst the applicant was unemployed for a period he did resume employment and continued working until 1982. When the applicant was examined on 2 July 1973 by a psychologist in Sarajevo (at T22), he remarked that the applicant had been unemployed for two years, but would "like to find work". It is noted that the only problems complained of by the applicant on this occasion were that he "Once had an attack of loss of consciousness doing heavy work. Now complains of weak kidneys. Has no other troubles, has good memory, sleeps well, is not nervous, comes to the Board, has no job, would like to find work. For awhile drank alcohol, now does not drink...".

9. The applicant says that he later qualified for an invalid pension and invalidity allowance in the Republic of Bosnia-Herzegovina on the basis of psychiatric and intellectual disability. The applicant now resides in Croatia where he has lived as a refugee because of the war in his country and following the death of his mother in 1992. He says that he is cared for by his sister who is working as a schoolteacher, but has very limited financial means. As a refugee, the applicant receives no financial assistance and maintains that he has a special need for financial assistance from Australia.

10. The medical evidence contained in the "T" documents confirms that the applicant continues to suffer from his disability and was diagnosed with schizophrenia in 1982 in Sarajevo (T24, at page 23).

11. Whilst the applicant maintained that he suffered from his illness whilst in Australia, was not able to perform his work duties properly and on occasions was forced to leave his employment, in order for him to qualify for the pension he seeks namely a special needs disability support pension, he must meet the requirements of s.773 of the Social Security Act 1991 ("the Act") which reads as follows:-

"A person is qualified for a special needs disability support pension if:

(a) the person has not resided in Australia at any time after 7 May 1973; and

(b) the person is severely disabled; and

(c) the person has turned 16; and

(d) at the time when the person first satisfied paragraph (b), the person was in Australia or temporarily absent from Australia; and

(e) the person is, in the opinion of the Secretary, in special need of financial assistance."

12. The respondent has conceded that the applicant satisfies the provisions of sub-paragraphs (a) and (c), and notes that the medical evidence suggests that the applicant was severely disabled at the time of his claim for pension. The sub-paragraph in contention is sub-paragraph (d), in that the respondent maintains that the applicant was not in Australia when he first became severely disabled.

13. The Tribunal was referred to s.23(4B) of the Act which defines severely disabled as follows:

"For the purposes of this Act, a person is severely disabled if:

(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

(i) to work for at least the next 2 years; and

(ii) unable to benefit within the next 2 years from participating in a program of assistance or a rehabilitation program, or

(b) the person is permanently blind."

14. The respondent contends that the evidence confirms that there was no stage during the applicant's residency in Australia when he was totally unable to work for at least two years. The respondent referred to the applicant's employment history between the years 1967 and 1971 as outlined above and reflected in the "T" documents at T17, pages 54 to 56. The respondent notes that the only gap in the applicant's employment history is that of 22-months from 29 October 1968 to 31 July 1970, which is under the two year period required. It was further submitted that there was no evidence to suggest that the applicant was ever totally unable to work whilst in Australia. Rather the applicant continued to work until he left the country in 1971, having last worked for the Department of Supply at Salisbury, albeit for only a few months.

15. In the written submissions the respondent referred the Tribunal to the medical evidence contained in the "T" documents that suggests that the applicant was first diagnosed with a psychiatric problem and treated in 1962, that is well prior to his arrival in Australia (T28, at page 85). The medical report prepared by a Croatian doctor for the Department of Social Security stated "The person is ill (affected mentally) from psychiatric disease from year 1962. Since 1990 to 1994 the person has been three time hospitalised. Permanently is receiving the psychofarmancy therapy". (T30, at page 89). In reply to a questionnaire forwarded to the applicant to support his claim for a disability support pension he had stated "The sickness started in 1961, but it got essentially worse during my stay in Australia, because of this I was then hospitalised in psychiatric institutions. Prior to that I was treated in Outpatients Clinics." (T31, at page 92).

16. Whilst there is no evidence that the applicant ever became severely disabled prior to arriving in Australia, the medical evidence suggested that he suffered symptoms of his illness prior to that time.

17. However in order to qualify for a special needs disability support pension, the applicant must be able to satisfy the Tribunal that he first became severely disabled whilst in Australia or temporarily absent from Australia in accordance with the provisions of s.773(d).

18. The Tribunal agrees with the submissions of the respondent and finds that the evidence confirms that the applicant did not become severely disabled whilst residing in Australia. There is no evidence that the applicant was totally unable to work for at least two years whilst residing in Australia. The applicant having failed to satisfy the provisions required to qualify for the pension, his appeal accordingly must therefore be dismissed.

19. The Tribunal affirms the decision under review.

I certify that this and the 5 preceding pages are a true copy of the decision and reasons for decision herein of

Ms A F Cunningham (Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing Matter decided on the papers.

Date of Decision 5 February 1999