SOCIAL SECURITY - disability support pension - mental health - dual citizen of Australia and USA - residency requirements modified by international agreement with USA - total period of 10 years with at least one period of five years modified so that USA period of coverage can be treated as period of Australian residence - Medicaid benefits and supplemental social security payments in USA - difficulty in obtaining documentation - US legislation covers disability insurance benefit payments but not supplemental social security payments - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

1. Mr Proctor is a [Age]-year-old man who has dual Australian and United States of America (US) citizenship. Mr Proctor commenced living in Australia [in] May 2023.
2. Mr Proctor has a long history of mental health difficulties and has been diagnosed with [a specified] disorder. While living in the US, he was in receipt of support through Medicaid and subsequently received supplemental social security payments. He claimed disability support pension (DSP) on 15 December 2023.
3. On 13 September 2024, Centrelink rejected Mr Proctor's claim for DSP. This decision was affirmed, following internal review by a Centrelink authorised review officer (ARO), on 20 September 2024.
4. On 3 December 2024, Mr Proctor applied to this Tribunal for external review of Centrelink's decision to reject a claim for DSP that he lodged on 15 December 2023.

1. The statutory provisions relevant to this review are set out in the Social Security Act 1991 (the Act) and the Social Security (International Agreements) Act 1999 (the IA Act).
2. Pursuant to section 94 of the Act, a person must meet the residence requirements to qualify for DSP. Of relevance to this application, paragraph 94(1)(e) specifies that the residency requirements are met if the person was a resident when first developing a continuing inability to work, or if the person has 10 years of qualifying residence.
3. The meaning of Australian residence is set out in section 7 of the Act. Subsection 7(5) states that a person can only have 10 years qualifying residence if they have a total period of Australian residence of 10 years with at least one period of residence being of 5 years or more.
4. Article 9 of Schedule 13 to the IA Act modifies the residency requirements of the Act for people who are resident in Australia after having resided in the US. Pursuant to paragraphs 1, 2 and 4 of Article 9, when a former resident of the US claims an Australian payment but does not meet the usual residency requirements, a US period of coverage can be treated as a period of Australian residence for the purposes of section 7 of the Act.
5. Pursuant to Article 1 of Schedule 13 to the IA Act, "United States period of coverage" means a period credited as a quarter of coverage under the laws of the US, or any equivalent period that may be used to establish the right to a benefit under the laws of the US.
6. Clause 2(1)(a) of Schedule 13 limits the scope of the agreement, as regards the US, to laws governing the old age, survivors and disability insurance program, as set out in Title II of the US Social Security Act and chapters 2 and 21 of the internal revenue code.
7. The issue which arises in this case is whether Mr Proctor met the residency requirements for DSP when he claimed on 15 December 2023.

1. The evidence before me in this matter consists of:

(i) The documents provided by Centrelink as representing the evidence it relied upon at the time of the original decision and at the time of the internal review (the hearing papers).

(ii) Sworn evidence and oral submissions provided by [Miss A] (representing Mr Proctor) during a hearing by telephone on 2 April 2025. Mr Proctor was also present during the hearing.

(iii) Additional documentary evidence and submissions provided by [Miss A].

(iv) A written submission provided by Centrelink.

1. Centrelink's position is set out in the decision statement of the ARO. The ARO found that Mr Proctor did not have the 10-year qualifying residence in Australia when he claimed DSP. This meant that, while he had a qualifying impairment rating of 20 points and a continuing inability to work, he did not satisfy the residency requirements for qualification and could therefore not be granted DSP.
2. In her written submission and her oral submissions during the hearing, [Miss A] said that Centrelink had erred in failing to consider the provisions of Schedule 13 to the IA Act. She submitted that the effect of these provisions was that a person who had been in receipt of social security or Medicaid benefits in the US, in respect of a severe impairment, for a period of 10 years or more, must be taken to meet the residency requirements set out in section 94 of the Act. She said that it had been difficult to obtain social security and Medicaid records from the state of [State] (where Mr Proctor had resided prior to moving to Australia). However, she submitted that such documents as she had been able to obtain were consistent with a finding that Mr Proctor had been in receipt of social security and Medicaid support since 2013.

Did Mr Proctor qualify for DSP when he claimed on 15 December 2023?

1. I note that the additional documentary evidence provided by [Miss A] includes, starting at page A604, a copy of an application for disability support through Medicaid that is dated 30 January 2013. [Miss A] submitted that this claim was granted with the date of commencement being the date of claim and that Mr Proctor was issued with a [State program] card which provided access to Medicaid funded health care.
2. The additional documentary evidence includes, at page A619-619, a copy of a letter from Social Security Administration in [State], dated 5 February 2018, advising that Mr Proctor medically qualified for supplemental social security payments. Subsequent documents provide additional evidence about a fee agreement with Mr Proctor's lawyer in respect of assistance provided by the lawyer in respect of the claim for supplemental social security payments.
3. I note that [Miss A] provided substantial additional documentary evidence to the effect that, as a result of his mental health difficulties, Mr Proctor had been unable to work and had been dependent on financial support.
4. The Tribunal ordered Centrelink to make submissions in response to the additional evidence provided by [Miss A]. Centrelink advised that, in order to make submissions, they would need to obtain further evidence from the US regarding Mr Proctor's disability support. The Tribunal granted additional time so that Centrelink could obtain evidence they considered relevant to their submissions.
5. In a written submission, Centrelink submitted that Mr Proctor had accumulated only two quarters of coverage in the US which meant that he could only meet the 10-year Australian residency requirement pursuant to Schedule 13 to the IA Act if there were 9 years and 6 months during which Mr Proctor had the right to a benefit, pension or allowance for which provision is made in Title II of the US Social Security Act.
6. Centrelink submitted that there was no period during which Mr Proctor had the right to a benefit, pension or allowance for which provision is made in Title II of the US Social Security Act. In their submission they noted that a representative of the US Federal Benefits Unit had advised that "Mr Proctor has not received or been entitled to any US Social Security Benefit. His previous claims for disability support benefits were all denied".
7. The Tribunal allowed [Miss A] time to respond to Centrelink's submission. In summary, she advised that she had been unable to obtain further evidence but the representative from the US Federal Benefits Unit was manifestly wrong in advising that Mr Proctor had not received or been entitled to any US social security benefit. She submitted that evidence she had already submitted established that he had been in receipt of social security disability insurance payments since 2017.
8. [Miss A] also submitted that the Federal Court case, Secretary, Department of Social Services v Vader (by his litigation guardian) [2023] FCA 439 (Vader) is relevant as the Court had held that a parent's period of coverage could be applicable to a child or a dependent unmarried disabled adult. This meant that Mr Proctor's father's period of coverage (as established by his taxation history) was transferable to Mr Proctor.
9. Finally, [Miss A] submitted that the Social Security Agreement between Australia and the US (Schedule 13 to the IA Act) is beneficial legislation that should not be narrowly interpreted so as to have the effect of depriving an adult with a severe disability of appropriate social security support because he chooses to live with his family.
10. Schedule 13 to the IA Act provides two pathways by which the 10-year residency requirement may be established. One is by tax based social security contributions. The other is by an equivalent period that establishes entitlement to a social security benefit. These must either singly or in combination sum to 10 years.
11. I am satisfied that Mr Proctor, as a result of his disability, has only two quarters of social security contributions. I am not satisfied that his father's contributions are transferable to Mr Proctor in accordance with the principles enunciated in Vader. Mr Proctor had been living independently in the US prior to migrating to Australia to live with his family. I agree with Centrelink that Mr Proctor had to establish a period of coverage in his own right and/or establish an entitlement to a social security benefit over a total period of 10 years.
12. I am inclined to accept that Mr Proctor has been in receipt of supplemental social security payments since 2017. There is clear evidence that he was in receipt of such payments (in the sum of approximately $US914 pcm) prior to migrating to Australia. Such payments would appear to meet the requirement for a benefit as summarised in section B.2 of Centrelink's submission.
13. However, it seems to me that the date when Mr Proctor first became eligible for such payments may not be important. The relevant provision in Article 1(1)(i) of Schedule 13 to the IA act defines a "United States period of coverage" as: "a period credited as a quarter of coverage under the laws of the United States, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States".
14. I understand Centrelink's position to be that equivalence is only established if the duration of entitlement is equivalent to the 10-year period of coverage. This is not how I read the relevant provision. Rather, I interpret the provision to mean that equivalence to a 10-year period of coverage is established when a person becomes eligible to a benefit under the laws of the US. For reasons that will become apparent, whether equivalence in years or only equivalence in qualification is required does not, in this case, have a bearing on my decision.
15. Pursuant to paragraph 1 of Article 2 of Schedule 13, the scope of the agreement is limited to laws set out in Title II of the US Social Security Act. This act covers disability insurance benefit payments but not supplemental social security payments. Notwithstanding [Miss A]'s submissions, I am not satisfied that Mr Proctor was entitled to a disability insurance benefit payment, which is probably what the US Federal Benefits Unit meant when stating that Mr Proctor has not received or been entitled to any US social security benefit and his previous claims for disability support benefits were all denied. It is possible that [Miss A] has not distinguished between disability insurance benefit payments and supplemental social security payments, a distinction that is critical as the former falls within Title II of the US Social Security Act but the latter does not.
16. As I am satisfied that Mr Proctor was eligible for supplemental social security payments but not disability insurance benefit payments, prior to his migration to Australia, it follows that, pursuant to paragraphs 1, 2 and 4 of Article 9 of Schedule 13 to the IA Act, he did not have the right to a benefit under the laws of the US (in the restricted meaning specified in Article 2 of Schedule 13). As he did not otherwise have 10 years of coverage in the US, he did not meet the residence requirements for DSP as set out in section 7 of the Act and modified by Schedule 13 to the IA Act.
17. Thus, while it is not in dispute that Mr Proctor had an impairment rating of 20 points and a continuing inability to work at the time of claim, he could not qualify for DSP as he did not meet the residential requirements specified in section 94 of the Act, even when Schedule 13 to the IA Act is given effect. It follows that I must affirm Centrelink's decision to reject his claim.