Djoneski and Secretary, Department of Family and Community Servic es [2003] AATA 28 (15 January 2003)

Last Updated: 21 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 28

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/441 & N2002/442

GENERAL ADMINISTRATIVE DIVISION	)
	Re	VANCO DJONESKI VERICA DJONESKI

Applicants

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Ms N Isenberg, Member

Date 15 January 2003

Place Sydney

Decision

The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - "permanently blind" - time when first satisfies definition - qualifying residence provisions - agreement with New Zealand - section 95(1)

SOCIAL SECURITY - special benefit - newly arrived resident's waiting period - substantial change in circumstances beyond the person's control - section 739A(7) - substantial change in circumstances beyond the applicant's control

Social Security Act 1991 section 95(1), 739A(7)

Avdatek and Secretary Department of Family and Community Services [2002] AATA 880 (3 October 2002)

Allahwerdi and Secretary, Department of Family and Community Services [2000] AATA 15 (17 January 2002)

Secretary, Department of Family and Community Services and Ewais [2000] AATA 487

Shaikh and Secretary, Department of Social Security (AAT 12785, 8 April 1998)

Re Touhane and Director-General of Social Security (1984) 6 ALD 147

REASONS FOR DECISION

15 January 2003

Ms N Isenberg, Member

DECISION UNDER REVIEW

1. The decision under review before the Administrative Appeals Tribunals ("the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Respondent") dated 2 August 2001 (T9) to reject Mr Djoneski's claim for disability support pension and the decision of 24 August 2001 to reject the application by both Applicants for special benefit (T4, T10). Those decisions were affirmed by Authorised Review Officers on 13 and 19 September 2001, respectively (T7, T11). The decisions were also affirmed by the Social Security Appeals Tribunal ("the SSAT") on 29 November 2001 (T2).

BACKGROUND

2. The Applicants were born in Macedonia and moved to New Zealand in 1997 where they became New Zealand citizens. On 23 May 2001 they emigrated to Australia. On 27 July 2001 Mr Djoneski applied for disability support pension but had his claim refused as he did not meet the residency requirement. On 20 August 2001 the Applicants applied for special benefit but their claims were rejected on the basis that they had not, since their arrival in Australia, experienced a substantial change in their circumstances for reasons beyond their control.

ISSUES BEFORE THE TRIBUNAL

3. Whether Mr Djoneski residentially qualified for payment of disability support pension ( that is, became blind while an Australian resident or had ten years qualifying Australia/New Zealand residence).

4. Whether the newly arrived resident's waiting period applied to the special benefit claims of Mr and Mrs Djoneski.

5. Whether any substantial changes in Mrs and Mr Djoneski's circumstances occurred for reasons beyond their control, such as to make special benefit payable to them.

APPEARANCES

6. A Hearing was held before the Tribunal on 11 October 2002 at which Mr Djoneski represented himself and his wife, with the assistance of Ms V Miok, an accredited interpreter in the Macedonian language. Notification was received from Mrs Djoneski that she did not object to the matter being heard in her absence. The Respondent was represented by Marian Buckley, an advocate from the Advocacy and Administrative Law Team at Centrelink.

LEGISLATION

7. The relevant legislation in this matter is the Social Security Act 1991 ("the Act"), in particular section 95(1). That section, so far as is relevant, provides as follows:

"95 Qualification for disability support pension - permanent blindness

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

(a) the person is permanently blind; and

(b) the person has turned 16; and

(c) the person:

(i) is an Australian resident at the time when the person first satisfies paragraph (a); or

(ii) has 10 years qualifying Australian residence; or

(iia) has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (a), the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

Note: for Australian resident and qualifying Australian residence see section 7.

..."

EVIDENCE: DOCUMENTS

8. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.

9. In addition, the following documents were tendered:

Exhibit	Description	Date
A1	Referral letter from John Veale, Low Vision Clinic	16/05/2001
A2	Letter from Associate Professor Clemett to Low Vision Clinic	16/03/2001
A3	Letter from Association for the Blind of WA to Centrelink	29/08/2001
A4	Letter from Dr P Hadden to Dr M Ingram	27/09/2001
A5	Letter from Dr Gregory	10/05/2002
A6	Letter from Dr Gregory to Dr Todorovic	10/05/2002
A7	Letter from Centrelink	02/01/2002
A8	Letter from Centrelink	04/02/2002
A9	Letter from Centrelink	29/04/2002
A10	Letter from Centrelink	25/06/2001
A11	Letter from Work and Income New Zealand	30/03/2000
A12	Letter from Work and Income New Zealand Studylink	12/03/2001
A13	Letter from Parkside Laboratories	14/03/2000
A14	Letter from Centrelink with annexure	07/08/2002
A15	Pamphlets of National Dispensary Technicians' Training Course	-
R1	Respondent's Statement of Issues	-
R2	Respondent's Statement of Facts and Contentions	-
R3	Social Security Agreement between Australia and New Zealand pages 1-20	-
R4	New Zealand Agreement effective from 1 July 2002 pages 1-24	-
R5	Letter from Work and Income New Zealand to Studylink	17/09/2002
R6	Studylink Letter and Covering Letter	18/09/2002

APPLICANTS' EVIDENCE AND SUBMISSION

10. Mr Djoneski gave sworn evidence and was cross-examined on behalf of the Respondent. Questions were also put to Mr Djoneski by the Tribunal.

11. Mr Djoneski told the Tribunal that he and his wife had emigrated from Macedonia to New Zealand in August 1997 and that they had became New Zealand citizens. Mr Djoneski worked from May 1999 in an electrical appliance laboratory doing high frequency appliance testing. Mrs Djoneski worked as a pharmaceutical technician.

12. Mr Djoneski had first consulted a doctor, who referred him to Associate Professor Clemett, about his sight in September 1999 because of an increasing lack of vision. He felt it might be due to age. Because of the responsible nature of his work Mr Djoneski felt he should have it checked. He said that he had difficulty on the day he saw the Professor because he was not familiar with the Professor's surroundings and had had about ten tests on his eyes that day, before he saw the Professor. The doctor did not offer any opinion about whether Mr Djoneski should persist with his job. His only advice was for Mr Djoneski to increase his vitamin intake and to eat good quality food. He continued to visit the doctor to have his sight checked every three months.

13. Mr Djoneski felt a `moral obligation' to withdraw from work, which he concluded on 17 March 2000, because it was dangerous work and he did not want to put his colleagues at risk because of his sight problems. He did not recall anyone from the New Zealand Blind Foundation coming to his workplace to assess his sight problems and it's impact on his workplace.

14. In cross-examination it was brought to Mr Djoneski's attention that in the written reference given to him by his former employer (A13), nothing was said about any limitations Mr Djoneski might have due to sight problems.

15. In December 2000 Mr Djoneski was accepted into a course to finish his Masters degree. He said he obtained a scholarship on the basis of having a disability. Lectures started in February 2001 and his first examination was in May 2001. While studying, Mr Djoneski looked for a less risky job at the same time. He was receiving `community wages', but said he did not qualify for the New Zealand equivalent of disability support pension.

16. Mr Djoneski said he came to Australia because he understood there to be more advanced medical research into his condition here than in New Zealand. He obtained this information from the media, TV and newspapers. Mr Djoneski also hoped that he and his wife would have better employment prosects in Australia. A further rationale given in support of coming to Australia was the climate and the good quality food. Mr Djoneski believed fruit and vegetables were more readily available in Australia and at lower prices than in New Zealand. The Djoneski's went first to live in Perth because they had family and friends there.

17. Mr Djoneski said that he was aware of some reciprocal pension agreement between Australia and New Zealand but that he was not aware of the details. He was aware that Australians who went to New Zealand received benefits and he assumed the reverse was true also. He was `convinced' he would be able to get some benefits here.

18. Mrs Djoneski applied for around fifty jobs but managed to obtain a part time position only. Between May 2001 and February 2002 the Djoneskis lived on savings, Mrs Djoneski's casual income and Family Allowance.

19. In March 2002 his wife was offered a full-time job in Sydney and so the family moved from Perth to Sydney. However, one of the problems in relation to her employment has been that, whilst she is a `laboratory assistant testing blood', she is unable to get a job more suitable to her qualifications in that field unless she is registered, and to be registered she needs to work in a pharmacy. The Tribunal was referred to Exhibit A15 to this effect.

20. About three months after the Djoneskis arrived in Sydney Mr Djoneski had an `attack'. After that he was unable to sleep and was `very unstable'.. At that time Mr Djoneski went to a GP. He said that he had had `no need' to see a doctor prior to that time concerning his eyes. It was not until he started to experience the chest pains associated with his `attack' that he needed to see a doctor. Mr Djoneski said his wife was similarly affected.

21. Mr Djoneski's last eye test prior to leaving New Zealand was in April 2001, and a report dated 16 May 2001 (Exhibit A1) was provided a few days before the Djoneski's departure. He was shown as having a loss of peripheral visual field to approximately 20 degrees. Mr Djoneski's visual acuity was, at that time, 6/36.

22. At that time Mr Djoneski had been driving his car to work every day. He continued to drive until they left New Zealand. He attended university lectures and was studying and was able to travel by public transport. He did not notice significant loss of vision.

23. Mr Djoneski referred the Tribunal to the report of Jodie Bruce, the social worker at the Association for the Blind of WA (Exhibit A3). He was said to have three degrees of field remaining in both eyes. Mr Djoneski also referred the Tribunal to the report of Dr Hadden, Vitreo-Retinal Fellow of Sir Charles Gairdner Hospital (Exhibit A4). Dr Hadden found Mr Djoneski to have visual acuity of 6/9 in each eye and about three degrees radius on each eye of peripheral visual field. In May 2002 Dr Gregory (Exhibit A5) found his visual acuity to be 6/6 and his central field of vision to be reduced to three degrees.

24. Mr Djoneski has not driven a car since he has been in Australia. Initially this was because the Djoneski's could not afford a car, but after that Mr Djoneski developed `psychological pressures' and he was not willing to take the risk of driving. He said it was dangerous because he is unable to see `sideways'.. Both Mrs Djoneski and their son learnt to drive. Mr Djoneski has not bothered to apply for an Australian licence and his New Zealand licence, which he had only renewed in June 2000, has now expired.

25. Mr Djoneski said he now needs a helper on the train.

26. Notwithstanding this, he has no need for reading glasses and can read `without limitation' material directly in front of him.

27. In cross-examination Mr Djoneski's attention was drawn to the report of Associate Professor Clemett dated 13 September 1999 (T13) in which he was recorded as have `extremely narrow field of vision with only 5° left centrally and a tiny peripheral island of temporal vision in each eye.' Mr Djoneski said that he was neither directly given this report nor directly advised not to drive. It was pointed out that the doctor had registered him with the Royal New Zealand Foundation for the Blind, but Mr Djoneski said that this was in relation to work issues and that the referral was `only a suggestion'. He was asked about the `work issues' and said they were resolved through discussion with his manager. He said the registration with the Royal New Zealand Foundation for the Blind was his only option to see if there was anyone able to help him. It was that organisation that put Mr Djoneski onto the scholarship for his Masters' studies.

28. Mr Djoneski's attention was also invited to Associate Professor Clemett's comments that he `tries to walk around the room [but] he does so with great caution and some difficulty'. Mr Djoneski denied this, saying that he would not have been able to work if he had been that bad. He also said he had had `about 20 tests' done on his eyes that day so it is not surprising that, with the added stress of the examination, he was having difficulty seeing. He also observed, in referring to Exhibit A1, that a year later in May 2001 his peripheral vision appeared to have been 20 degrees, which would be an improvement, rather than a deterioration, as might be expected. On these grounds Mr Djoneski questioned the accuracy of Associate Professor Clemett's 1999 report. In any event, Mr Djoneski said that some days his sight is better than others.

29. Mr Djoneski said there was an over-reliance on the report of Associate Professor Clemett but conceded that the Professor had declared him to be `blind'.. He also stated that no consideration had been given to the fact he had been capable of many more activities while in New Zealand.

30. Mr Djoneski took issue with the Social Security Appeals Tribunal finding, as he understood it, on the grounds that his deteriorating vision was something that was within his control.

31. Mr Djoneski referred the Tribunal to the recent case of Avdatek and Secretary, Department of Family and Community Services [2002] AATA 880 (3 October 2002).

SUBMISSION: RESPONDENT

DISABILITY SUPPORT PENSION

32. It was the Respondent's submission that Mr Djoneski could not meet the criteria for the disability support pension contained in section 95 of the Act. The advocate referred to the report of Associate Professor Clemett of 13 September 1999 (T13) and submitted that this was evidence that Mr Djoneski had become `permanently blind' while in New Zealand. As such he was unable to meet the terms of Section 95(1)(c)(i) in that he did not `first' become permanently blind while in Australia.

33. Similarly he was unable to meet the provisions of section 95(1)(c)(ii) in that he did not have ten years qualifying Australian residence.

34. The Centrelink advocate also took the Tribunal to the social security agreement between Australia and New Zealand, which was in effect at the date of the Applicants' emigration to Australia and at the date of the claim. That agreement overcomes the residency requirements, providing a claimant has been resident in New Zealand for at least ten years. This was not the case with Mr Djoneski as he had only emigrated to New Zealand in 1997.

35. A new agreement which came in to effect on 1 July 2002 also requires ten years residence in either Australia and/or New Zealand.

SPECIAL BENEFIT

36. To be eligible for special benefit a claimant is subject to a newly-arrived residents' waiting period of two years. Section 739A(7) of the Act specifies that the waiting period does not apply if the person has suffered a substantial change in circumstances beyond that person's control.

37. The advocate stated that Mrs Djoneski had come to Australia with limited funds but with a reasonable work history. Her expectations of immediately getting better paid full-time work had not come to fruition until relatively recently. It was submitted that there had not been a substantial change in her circumstances to warrant waiving the waiting period of two years.

38. As to Mr Djoneski, it was submitted by the Respondent that, subsequent to the assessment by Associate Professor Clemett in 1999, Mr Djoneski had worked, studied, driven a car and travelled by public transport. In short, he managed to function notwithstanding the level of blindness observed by the Professor. In New Zealand Mr Djoneski was in receipt of a community wage sickness benefit because of his impaired vision. Australian examinations assess his peripheral vision at three degrees, not a `substantial' deterioration. The report of Mr Veale (Exhibit A1) immediately before his departure for Australia should be regarded as an aberration.

FINDINGS

39. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

DISABILITY SUPPORT PENSION

40. As Mr Djoneski did not meet the qualifying residence provisions of section 95(1)(c)(ii), in that he did not have 10 years qualifying Australian residence, the Tribunal then turned to consider whether he met the provisions of section 95(1)(c)(i), namely whether he `first' became permanently blind while in Australia. In determining if Mr Djoneski first became permanently blind while in Australia the Tribunal adopted the approach in Re Touhane and Director-General of Social Security (1984) 6 ALD 147:

"Since McDonald's case [(1984) 1 FCR 354] ... it is clear that there is no relevant onus in applications of this nature. We must simply be satisfied on the probabilities that the terms of the Act relied upon by both parties, are supported by the facts. On that basis, we are satisfied that it is more probable than not that the applicant became permanently blind while in Australia ..." (transcript at pp 14-15)

41. For convenience, the evidence in relation to Mr Djoneski's sight assessment may be summarised as follows:

Date	Exhibit	Visual Acuity	Peripheral Visual Field
13/09/1999	T13	6/6	5º left
16/03/2001	A2	-	`extensive loss'
16/05/2001	A1	6/36	20º
29/08/2001	A3/T5	-	3º
27/09/2001	A4	6/9	3º
10/05/2002	A5	6/6	3º

42. It is worthwhile reproducing significant portions of the report of Canterbury Health by Associate Professor Clemett (T13), upon which the Respondent relied and which Mr Djoneski said had been the subject of too much emphasis.

43. It should be noted at the outset that Dr Clemett is an Associate Professor of Ophthalmology. He examined Mr Djoneski, apparently on referral from Mr Djoneski's GP.

44. Associate Professor Clemett found the visual fields to be `extremely narrow' with `only 5° left centrally and a tiny peripheral island of temporal vision in each eye'. He further observed:

"This field loss is quite apparent as Mr Djoneski tries to walk around the room ... he does so with great caution and some difficulty."

45. In his report, the Professor advised Mr Djoneski to wear sunglasses outdoors and to eat a healthy diet with plenty of leafy greens. He also said he had registered Mr Djoneski with the Royal New Zealand Foundation for the Blind.

46. The Professor concluded by saying:

"... Mr Djoneski has very significantly diminished peripheral visual acuity and ... he will have difficulty with mobility, will be unable to hold a driving license [sic] and is at risk of bumping into objects."

47. It is consistent with Mr Djoneski's evidence that Associate Professor Clemett observed that Mr Djoneski was `having difficulty with peripheral vision at work'. The doctor recommended that the Blind Foundation examine Mr Djoneski's workplace. He was not prepared to say whether Mr Djoneski could carry out his work without an on-site inspection (within six months Mr Djoneski in fact left work).

48. In the weeks before leaving New Zealand Mr Djoneski was again examined by Associate Professor Clemett. The Professor referred him to Mr Veale, an optometrist, noting that he had `extensive loss of peripheral visual field' (Exhibit A2). He asked the optometrist to provide Mr Djoneski with equipment that would stabilise the eyes and allow the book to move rather than the eyes. The Professor recorded, presumably on the basis of information provided by his patient, that Mr Djoneski was 'experiencing some difficulty at the University'.

49. Mr Djoneski asked the Tribunal to prefer the report of Mr Veale (Exhibit A1), in the examination conducted on Associate Professor Clemett's referral. Mr Veale observed Mr Djoneski`s loss of peripheral visual field to be approximately 20 degrees. However, Mr Veale also recorded a significant loss of visual acuity (to 6/36), however no other reports, before or since, contains a reference to such poor visual acuity. The Tribunal notes that in the same document that he advised 3x magnification. He also recommended that Mr Djoneski improves his touch typing skills and familiarises himself with Zoom and other computer magnifying devices.

50. The Tribunal notes that the Department policy guidelines in relation to being `permanently blind' for the purposes of section 95 of the Act state that a person must have:

* "visual acuity (1.1.V.50) on the Snellen Scale after correction by suitable lenses of less than 6/60 in both eyes, OR

* constriction to within 10 degrees of fixation in the better eye irrespective of corrected visual acuity, OR

* a combination of visual defects resulting in the same degree of visual impairment as that occurring in the above points."

51. A previous version of the Guide referred to `severe tunnel vision'.

52. Mr Djoneski's own evidence about his eyesight was that while in New Zealand he had given up work because it was too risky to continue to work. He said he obtained the scholarship for a Masters degree on the basis of his disability. He obtained a pension because of his eyesight problem.

53. On the basis of Re Touhane (supra) the Tribunal found that it was more probable than not that Mr Djoneski had first become permanently blind while in New Zealand. That being the case Mr Djoneski cannot qualify for disability support pension under Section 95(1)(c)(i).

SPECIAL BENEFIT

54. To be eligible for special benefit a claimant is subject to a newly arrived residents' waiting period of two years, but the waiting period does not apply if there has been a substantial change in circumstances beyond the person's control.

55. In respect of Mrs Djoneski, the evidence was that she had come to Australia, primarily because her husband wished to come to Australia for the reasons outlined in his evidence. She had been in employment for some period after their arrival in Australia, but she was able to obtain part time work only. Only relatively recently did she obtain fulltime work. Mr Djoneski submitted that his wife was prevented from pursuing her career as a pharmaceutical technician because her qualifications were not recognised here. Mrs Djoneski is presently employed full-time in a related area.

56. Mrs Djoneski had arrived in Australia with the expectation that she would be able to obtain employment quickly. There was no evidence that she had made enquiries with any person or organisation in Australia prior to migrating here, as to the prospect of finding work immediately. Her inability to find employment in her profession is not a change in circumstances that was beyond her control as noted in Allahwerdi and Secretary, Department of Family and Community Services [2000] AATA 15 (17 January 2000), and Secretary, Department of Family and Community Services and Ewais [2000] AATA 487 (19 June 2000). The fact that Mrs Djoneski made a decision to live in Australia was a matter of choice and a risk that she was prepared to take. This was noted in Shaikh and Secretary, Department of Social Security (AAT 12785, 8 April 1998).

57. The Tribunal therefore found that there had been no substantial change in Mrs Djoneski's circumstances beyond her control.

58. As to Mr Djoneski, the Tribunal has found that he was `permanently blind' at the time he emigrated to Australia.

59. In Re Touhane (supra) , the Tribunal noted:

"The meaning of "blind" is still very much at large. It is a curiously imprecise and old fashioned word (rather like "mad") seldom used by medical practitioners and principally to be found in non-medical contexts. It more properly belongs in the realm of literature, religion or history than in medicine or law. It is, however, a word used in an Act of Parliament and one must, therefore, ascribe a meaning to it. ...

In our view, it is not sufficient merely to go to a dictionary and to ignore all medical practice and all standards adopted by persons concerned with sight deficiencies. This is one of the occasions where a standard meaning must be arrived at by taking into account much wider considerations."

60. Mr Djoneski's evidence was that he had worked, studied, driven a car and travelled by public transport in New Zealand, subsequent to Associate Professor Clemett's assessment of him in 1999.

61. Mr Djoneski's evidence is that he is now unable to drive a car and that he needs a helper on the train. However, as early as 1999 it was foreshadowed that he would have difficulty driving and that he was, at that time, he conceded in cross-examination, demonstrating some mobility problems in unfamiliar places.

62. Mr Djoneski said in evidence that he has no need of reading glasses. The Tribunal notes that his studies in Australia have not progressed, for reasons which are unclear. It was observed that in 2001 before emigrating to Australia, Mr Djoneski was having `difficulties at university'. At that time he was advised to obtain visual aids and to magnify his reading material.

63. All examinations of his eyes conducted in Australia since his arrival assess Mr Djoneski's peripheral vision at three degrees.

64. The Tribunal considered this not to be a `substantial' deterioration, given that his condition is a degenerative one and given that, since 1999, Mr Djoneski's field of vision was regarded `extremely narrow' and that his loss of peripheral visual field was regarded in 2001 as `extensive'. The Tribunal found that prior to coming to Australia, Mr Djoneski was already `blind' for the purposes of the Act. In these circumstances the Tribunal did not consider, on the balance of probabilities, that there had been a substantial change in Mr Djoneski's circumstances since coming to Australia.

65. The Tribunal observes the harsh reality that the introduction of section 739A is the deliberate expression of Parliamentary intention that new arrivals to this country will not be a burden on the public purse, unless there exists some substantial change in their circumstances beyond their control, which would warrant the making of an exception to the general rule. The Tribunal has found in this case that there is no substantial change in Mr or Mrs Djoneski' s circumstance which was beyond their control. Hence special benefit is not payable to either of the Applicants.

DECISION

66. The decision under review is affirmed.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed: L Bonouvrie Associate

Date of Hearing: 11 October 2002

Date of Decision: 15 January 2003

Representative for the Applicant: Self

Interpreter for the Applicant: Vesna Miok

Advocate for the Respondent: Marian Buckley