Ahmed and Secretary, Department of Social Services (Social security second review) - [2024] ARTA 417

Ahmed and Secretary, Department of Social Services (Social security second review) [2024] ARTA 417 (7 November 2024)

Applicant/s:  Morris Ahmed
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2023/8381

Tribunal:General Member J Leonard
Place:Sydney
Date:07 November 2024

Decision:The Tribunal sets aside the decision under review and, in substitution, decides Mr Ahmed’s carer payment can continue to be paid during an extended portability period ending on 30 June 2022.

…………………[SGD]…………………………………

General Member J Leonard

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.

CATCHWORDS

SOCIAL SECURITY – carer payment – suspension – maximum portability
period – extension of portability period – whether Applicant was prevented from returning to Australia because of the serious illness or illness of a family member – decision under review set side.

LEGISLATION

Administrative Review Tribunal Act 1975 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

CASES

Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194

Majidi and Secretary, Department of Education, Employment and Workplace Relations [2011] AAT 309

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (No 3) [2011] FCA 268

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29

SECONDARY MATERIALS

Guide to Social Security Law, Department of Social Services

Maryam Nesvaderani, Guy D Eslick and Michael Cox ‘Acute pancreatitis: update on management’’ in the Medial Journal of Australia (MJA 202(8))

Statement of Reasons

BACKGROUND

Mr Morris Ahmed was in receipt of carer payment when he departed Australia on 27 April 2022.
On 8 June 2022, Services Australia – Centrelink (Centrelink) suspended Mr Ahmed’s carer payment effective from 8 June 2022 on the basis that he had been outside Australia for more than six weeks.
As will be outlined below, a person’s carer payment can continue to be paid (or is portable) for the first six weeks of an overseas absence. This period can be extended in certain circumstances.
Mr Ahmed returned to Australia on 28 July 2022 and his carer payment was restored from that date. He was notified in writing on 31 March 2023 that the request for an extension to his portability period was not approved.[1]
[1] T11, 87.
Mr Ahmed sought review of the decision to not extend the period of portability and suspend his carer payment. On 20 April 2023, a Centrelink authorised review officer affirmed the decision. Mr Ahmed applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) on 20 April 2023. The decision under review was affirmed on 3 October 2023. Mr Ahmed sought a review by the General Division of the AAT on 9 November 2023.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A hearing was conducted on 28 October 2024. Mr Ahmed appeared by phone and was self-represented. He gave evidence under affirmation. The Secretary of the Department of Social Services was represented at the hearing by Ms Henderson. The Tribunal was assisted by an interpreter in Arabic.

ISSUES

The issue to be decided by the Tribunal is whether discretion should be exercised to extend the portability period for the payment of Mr Ahmed’s carer payment.

LEGISLATION

The relevant legislation is set out in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
As a general rule, pursuant to section 1217 of the Act, carer payment cannot be paid to a person who is absent from Australia for more than six weeks.
Section 1218C allows for a period of extended portability if a specified event occurs that prevents a person’s return to Australia. The specified events are set out in subsection 1218C(1) of the Act:
(a)            a serious accident involving the person or a family member of the person;
(b)            a serious illness of the person or a family member of the person;
(c)            the hospitalisation of the person or a family member of the person;
(d)            the death of a family member of the person;
(e)the person’s involvement in custody proceedings in the country in which the person is located;
(f)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);
(g)robbery or serious crime committed against the person or a family member of the person;
(h)            a natural disaster in the country in which the person is located;
(i)             political or social unrest in the country in which the person is located;
(j)             industrial action in the country in which the person is located; and
(k)            a war in the country in which the person is located.
Subsection 1218C(2) of the Act further provides that the relevant event must have occurred or begun during the period of absence.
Section 80 of the Administration Act relevantly provides that if Centrelink is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.

CONSIDERATION

There is no evidence to corroborate Mr Ahmed’s claim that he contacted Centrelink prior to 27 April 2022 to advise of his departure from Australia.
Mr Ahmed emailed Centrelink on 7 June 2022 and explained that he was remaining in Egypt to look after his mother who had been in hospital for a few days due to a serious illness. He advised that his mother was scheduled to have surgery on 28 June 2022 and his brother could not assist with her care as he had been in a serious car accident.[2]
[2] T8, 81.
The Secretary’s position is that Mr Ahmed did not provide sufficient evidence to verify that he was unable to return to Australia within six weeks of his departure due to a family member having a serious illness or being hospitalised.
Translated medical documentation confirms that Mr Ahmed’s mother, born [year], attended a Hospital on 12 May 2022. A translated medical report from the Hospital dated 15 May 2022[3] states:
The patient attended the General Surgery section and complained of acute pain in the abdomen.
Upon examination: It was found that there was an acute infection in the pancreas and stones in the gall bladder.
Treatment plan: The patient was admitted into hospital for further tests and to receive the necessary treatment. The patient refused to complete the treatment and was discharged from the hospital upon their request.
[3] ST3, 19.
An abdomino-pelvic ultrasound was undertaken on 12 May 2022 and identified multiple gallstones.[4] The findings from a CT scan[5] dated 14 May 2022 indicated possible pancreatitis which was suggestive of infective/obstructive small bowel. Detailed clinical, laboratory correlation and follow-up was recommended. A biochemistry report dated 13 May 2022 showed remarkably high protein readings in the pancreas.[6]
[4] T6, 77.
[5] T6,78.
[6] ST2, 8.
Mr Ahmed stated that his mother became suddenly ill on 12 May 2022. They were breaking their fast with friends and she developed serious pain in her abdomen. Mr Ahmed rushed her to a Hospital which is a private hospital about 15 minutes away. His mother was admitted to hospital and tests were undertaken. Mr Ahmed stressed to the Tribunal that his mother was discharged from a hospital on 15 May 2022 against medical advice.[7] He was forced to take this course of action because they could not afford the cost of treatment at the private hospital.
[7] ST3, 20.
Mr Ahmed took his mother to a different hospital on 15 May 2022, however they were told that no beds were available and that further tests were needed. Mr Ahmed returned home with his mother. The Applicant’s mother had been prescribed medication and she was told that surgery would be undertaken when the hospital was satisfied that she was ready. Mr Ahmed explained that she needed further blood tests and a review by a cardiologist. Her pain was “up and down”. She was required to avoid eating certain food.
The ultrasound report of the abdomen dated 21 May 2022 noted that the pancreas was “masked by gases” and multiple gall stones were identified.[8] The cardiologist’s report dated 19 May 2022 is largely unremarkable.
[8] ST2, 12.
A translated report from Dr O dated 4 July 2022 [9] states:
[9] T10, 86.
We would like to advise you that the patient was admitted on 25/06/2022
And discharged on 30/06/2022.
Having reviewed the patient’s file and medical information, scans/X-rays and other
medical imaging investigations and tests during her treatment in the Hospital, it has
been found that the patient has abdominal pains due to Gallbladder stones.
She had an Endoscopy/laparoscopy [illegible words]
The patient needs to take the medications and rest at home for one month and she
needs to attend her medical appointments as an Outpatient for follow-up and
monitoring.
SPECIALIST, DR O [signed & stamped]
[The SPECIALIST’s signature has been witnessed by the Director or the Health Insurance
Authority.
Issued on 04/07/2022
Another translated report (undated) states the Applicant’s mother was admitted and discharged from a different hospital on 28 June 2022 and the medical diagnosis is stated as ‘Lap Chole Surgery’.[10]
[10] T10, 84.
The Tribunal notes the discrepancy in the two reports regarding the dates the Applicant’s mother was admitted and discharged from hospital. The Tribunal considers it is unlikely she was admitted, underwent surgery to remove her gall bladder and was then discharged the same day. The Tribunal prefers the dated report from Dr O which is more comprehensive and corroborates Mr Ahmed’s oral evidence relating to the dates his mother was in hospital. The Tribunal finds that the Applicant’s mother was admitted to a different Hospital on 25 June 2022, underwent laparoscopic cholecystectomy to remove her gallbladder on 28 June 2022 and was discharged on 30 June 2022.
The Secretary accepts that the Applicant’s mothers admission to a Hospital on 12 May 2022 occurred during the portability period. The Secretary submitted however that there was insufficient evidence that the Applicant’s mother’s gallbladder condition was a ‘serious illness’ which prevented Mr Ahmed from returning home before 8 June 2022 stating:

a)The Applicant’s Mother was discharged from a private hospital on 15 May 2022 and was not admitted to a different hospital in preparation for surgery until 25 June 2022. This is a period of 41 days spent at home resting. Although surgery was required, the surgery was not of an emergency or urgent nature. As the Applicant’s mother was not in hospital on 8 June 2022, s1218C(1)(c) is not satisfied.
b)On the Applicants mother’s discharge from a hospital, there is an absence of evidence indicating that her condition was a ‘serious illness’, the duration or functional impact of her condition which required her to be cared for by her son until such time as she was able to care for herself or until she had the surgery.
c)There is no evidence the Applicant’s mother had non-elective emergency surgery because of an urgent or life-threatening medical condition or that her conditions were complicated by other medical conditions. The medical evidence states ‘recommended follow-up’ which does not denote a ‘serious illness’.

The Secretary referred to the Social Security Guide at 7.1.2.10 which provides:
The event preventing the person's return to Australia (or their usual country of residence) must be extreme or of an emergency nature and must have occurred or begun during the person’s limited portability period...
The Secretary drew the Tribunal’s attention to the case of Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194 in which the applicant’s conditions were vaguely described.
The medical evidence in this case however presents a clear diagnosis. The Applicant’s mother had abdominal pain of sufficient degree that she presented to hospital and was admitted. She was diagnosed with gall stones and pancreatitis. The Applicant’s mother ignored medical advice suggesting she should remain in hospital (due to cost). In this case, the Applicant’s mother’s symptoms were not vague or without a specific onset, and her condition was conclusively diagnosed.
The Tribunal agrees with the Secretary’s submission that in order to enliven the discretion contained in section 1218C of the Act, any of the listed circumstances in subsection 1218C(1) of the Act are required to have occurred or begun during the person’s period of absence, and when the person was within the allowable portability period.
The Tribunal is satisfied that an illness of significant degree to involve admission to hospital is a ‘serious’ illness. It is clear that the relevant event, Mr Ahmed’s mother’s abdominal pain which resulted in presentation to a hospital, occurred on 12 May 2022, that is, during Mr Ahmed’s absence from Australia. She was diagnosed with an acute infection of the pancreas and stones in the gall bladder; paragraph 1218C(1)(b) of the Act is therefore satisfied.
What is at issue is whether the Applicant’s mother’s condition remained serious such that Mr Ahmed was unable to return to Australia before the end of his portability period.
In the Full Federal Court matter of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29 Justice Dodds-Streeton commented at [75] that an inability to return to Australia is not limited to a physical impossibility or incapacity.[11]
[11] Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29.
The Secretary submitted that the 41-day period between discharge from a Hospital, and admission to a different Hospital for surgery, was a period during which the Applicant’s mother was resting. The Secretary contends that, following discharge from a Hospital, there is no evidence of the Applicant’s mother’s functional limitations, the level of care she required from Mr Ahmed, or the medication she was prescribed.
Mr Ahmed submitted that just because the Applicant’s mother was not admitted to a different Hospital due to a lack of beds on 15 May 2022, does not mean that she was not at risk of dying. She remained very unwell and in need of his care. Mr Ahmed was of the view that it was necessary for him to continue to advocate on her behalf in order ensure the necessary surgery was not delayed. He is of the opinion that the surgical waiting list is influenced by corruption.
As permitted by section 52 of the Administrative Review Tribunal Act 2024, the Tribunal informed itself of the medical literature on pancreatitis by reviewing a 2015 article by Maryam Nesvaderani, Guy D Eslick and Michael Cox ‘Acute pancreatitis: update on management’ in the Medial Journal of Australia (MJA 202(8)).
The article relevantly states:
Diagnosis
The diagnosis of acute pancreatitis is made if two of the following three criteria are met:
(i) upper abdominal pain;
(ii) serum amylase and/or lipase levels > 3 times the upper limit of normal;
(iii) characteristic findings on abdominal imaging.
…
Management of mild pancreatitis
Early aggressive intravenous hydration with isotonic crystalloid solution within the first 12–24 hours.
Oral feeding can be commenced once pain is resolving and there is no nausea or vomiting.
Cholecystectomy in mild biliary pancreatitis should be performed during the index admission.
Management of severe pancreatitis
Early aggressive intravenous hydration with isotonic crystalloid solution within the first 12–24 hours.
Patients with severe acute pancreatitis as defined by the revised Atlanta classification (persistent organ failure) should be managed in the intensive care setting.
In severe acute pancreatitis, enteral feeding should be commenced early in patients requiring nutritional support.
Summary
·Acute pancreatitis is a common acute surgical condition associated with high morbidity and mortality in severe cases.
·…
·Acute pancreatitis should be managed with aggressive hydration with intravenous fluids and fasting.
·…
·Patients with biliary pancreatitis and concurrent cholangitis should have endoscopic retrograde cholangiopancreatography within 24 hours of presentation.
Cholecystectomy is surgery to remove the gallbladder. According to the medical literature, it is recommended that surgery is performed during the initial admission to hospital even in cases where patients are diagnosed with mild pancreatitis.
The Tribunal concludes that an event occurred during Mr Ahmed’s absence from Australia, that is, the serious illness of his mother. The Tribunal does not consider that the decision to leave a hospital on 15 May 2022 against medical advice is evidence that the Applicant’s mother did not remain seriously unwell.
Mr Ahmed told the Tribunal that his brother had surgery to remove glass from his eyes following a serious car accident on 27 May 2022. Translated medical evidence shows that Mr Aaron Ahmed was admitted to hospital on 27 May 2002 with a tear in the upper and lower eyelids of the right eye. He was discharged on 29 May 2022.[12] Mr Ahmed stated his brother was unable to drive and initially he was told to take a months’ leave from the Army which was then extended to two months. His brother had to exercise caution to ensure he did not get dust in his eyes following surgery, and he was unable to assist with the care of their mother.
[12] T9, 83.
Due to his brother’s functional limitations following his surgery on 27 May 2022, Mr Ahmed remained the person responsible for advocating and caring for his mother and taking her to medical appointments. Mr Ahmed was unable to return to Australia as his mother remained seriously unwell. He told the Tribunal that it was a requirement that a family member donate blood as a condition of admission to a hospital. This was in lieu of ‘payment’ for the surgery. The blood he donated on the day of admission went towards the hospital’s general supply.
The report from Dr O dated 4 July 2022[13] refers to the need for the Applicant’s mother to ‘take the medications and rest at home for one month and she needs to attend her medical appointments as an Outpatient for follow-up and monitoring’. In a translated medical report dated 24 April 2024, provided by the Secretary on 30 April 2024, Dr H stated that following the removal of her gall bladder the Applicant’s mother was directed to:
“… continue treatment, dressing the wound and to rest at home for one month. She has to go to the outpatient clinic for check-up.”
[13] T10, 86.
The Applicant’s mother is widowed and lives alone. Mr Ahmed’s evidence was to the effect that his sister-in-law and his brother were able to visit her at her home following her discharge from Hospital on 30 June 2022.

The Tribunal finds that, following the Applicant’s mother’s discharge from hospital, Mr Ahmed was able to return to Australia. There is no evidence that his mother’s illness was serious post-surgery while she was recuperating at home.
Although Mr Ahmed’s desire to remain in Egypt for a period following his mother’s surgery is understandable, he was not prevented from returning to Australia from 1 July 2022. The date of the surgery was known in advance, and Mr Ahmed could have made plans for a return flight to Australia. Mr Ahmed explained that he contracted coronavirus and he waited until his test result was negative before booking a return flight. This event did not occur during the allowable portability period and so cannot extend the portability period.
The Tribunal determines that it is appropriate to exercise the discretion contained in section 1218C of the Act and extend the portability period from 8 June 2022 to 30 June 2022 inclusive.
As the Tribunal has reached a different decision to that of the AAT, the decision under review will be set aside.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides Mr Ahmed’s carer payment can continue to be paid during an extended portability period ending on 30 June 2022.

Date(s) of hearing:	28 October 2024
Applicant:	In person
Solicitors for the Respondent:	Ms A Henderson, Services Australia