ASLIMOSKI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 361
•14 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 361
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3122
GENERAL ADMINISTRATIVE DIVISION ) Re PAVLE ASLIMOSKI Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Member Mark Hyman Date 14 May 2010
Place Canberra
Decision The decision under review is affirmed.
..............................................
Mark Hyman
Member
CATCHWORDS
SOCIAL SECURITY- disability support pension (DSP)- variation or cancellation of payment- rheumatoid arthritis- period DSP should be paid- whether DSP correctly rejected—notice to provide further information- failure to comply with requirement to provide further information- travel overseas- portability provisions- decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 37
Acts Interpretation Act 1901 s 29
Social Security Act 1991 ss 23(4B), 1064, 1217, 1218C (superseded).
Social Security (Administration) Act 1999 ss 37, 63(2), 64, 67, 68, 81(3), 85, 107, 108, 109, 129, 237.
CASES
Re De Beer and Secretary, Department of Family and Community Services [2004] AATA 598.
Re Dos Santos and Secretary, Department of Family, and Community Services [2003] AATA 432.
Re Glazebrook and Secretary, Department of Social Security [1996] AATA 557.
Re Secretary, Department of Social Security and Tsakrios [1994] AATA 32.
XX May 2010 REASONS FOR DECISION
Member Mark Hyman
1. Mr Aslimoski, the applicant, came to Australia from Macedonia in 1973, later becoming an Australian citizen. He worked for many years as a builder. Mr Aslimoski has developed rheumatoid arthritis. He spends a significant amount of time in Macedonia, both for family reasons and, in particular, to obtain what he regards as preferred treatment for his arthritis. He has been from time to time a recipient of disability support pension (DSP) under the Social Security Act 1991 (‘the Act’).
2. Mr Aslimoski seeks review before the Administrative Appeals Tribunal (the Tribunal) of two decisions made by Centrelink in relation to his DSP. First, in June 2004 Centrelink made a decision to cancel Mr Aslimoski’s disability support pension (‘the 2004 decision’). Second, in May 2006 Mr Aslimoski sought to have his pension reinstated, and in July 2006 Centrelink rejected Mr Aslimoski’s claim for DSP (‘the 2006 decision’). Mr Aslimoski sought review by Centrelink of the two decisions in February 2009, and both these decisions were affirmed by an Authorised Review Officer in April 2009. Mr Aslimoski sought further review of the decisions by the Social Security Appeals Tribunal (SSAT). In June 2009 the SSAT set aside the 2004 decision, and determined that he should be paid DSP for a period of 26 weeks from 21 June 2004. The SSAT affirmed the 2006 decision. Mr Aslimoski has now applied to the Tribunal for review of the SSAT’s decision. The review is of both elements of the SSAT’s decision, that is, the setting aside of the 2004 decision and substitution of its own decision to pay Mr Aslimoski 26 weeks of DSP, and the affirmation of the 2006 decision.
3. Mr Aslimoski represented himself at the hearing; Ms Keely Horan, a Centrelink advocate, represented the respondent. Material before the Tribunal included documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act and further documentation as follows:
(a)notes from St Erazmo Special Hospital for Orthopaedic Surgery and Traumatology dated 21 September 2009 and 29 September 2009. These were submitted in the Macedonian language with an authorised English translation (Exhibit A1);
(b)a letter to the Tribunal from the applicant, dated 5 March 2010 (Exhibit A2); and
(c)a note to the ‘Central Link Mediator’ (assumed to be intended for the Centrelink Mediator) dated 26 May 2009 from Dr G N Sukumar of Crawford Street Medical Clinic, Queanbeyan (Exhibit R1).
4. Mr Aslimoski attended the hearing and gave oral evidence. Owing to an oversight, he was not sworn in and his oral evidence was therefore unsworn.
The issues
5. The issues before the Tribunal are:
(a)Whether, and for what period, disability support pension should have been paid to Mr Aslimoski from 19 December 2003; and
(b)whether Mr Aslimoski’s application for disability support pension was correctly rejected in July 2006.
The statutory context
6. Relevant legislation comprises the Act and the Social Security (Administration) Act 1999 (‘the Administration Act’) as they stood at the relevant times.
7. Section 67 of the Administration Act, to the extent that it is relevant to present circumstances, allows the Secretary to notify a person who has made a claim for a social security payment, of the requirement to inform the Department of changes, or prospective changes, in circumstances that may affect payment of the social security benefit to that person. Section 68 of the same Act allows the Secretary to seek similar information from a person who receives a social security payment.
8. Subsection 63(2) of the Administration Act provides, relevantly, that the Secretary may require claimants of social security payments to do various things, including attend an office of the Department and provide information to the Secretary. Section 64 of the Administration Act provides as follows:
64 Effect of failing to comply with requirement to attend Department etc.
Person receiving, or claiming, social security payment
(1) If:
(a)a person is receiving, or has made a claim for, a social security payment; and
(b)the Secretary notifies the person under subsection 63(2) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e)the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f)the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
9. Subsection 81(3) of the Administration Act states that if a recipient has been given notice under section 67 or 68 of that Act, requiring the person to inform the Department of a proposal to leave Australia, and the person fails to comply, leaves Australia, and their portability payment for the period has not ended, the Secretary may cancel or suspend the payment.
10. Section 37 of the Administration Act allows the Secretary to determine claims for payment made under the Act. The Secretary must grant a payment where the claimant is qualified for the payment, and the payment is payable. Under section 129, a person may apply to the Secretary for review of a decision made by an officer under social security law. Section 85 of the Administration Act allows the Secretary to restore a suspended or cancelled benefit on review.
11. Sections 107, 108 and 109 address the date of effect of general determinations, and of determinations following favourable review of decisions. Where a review decision is favourable, the date of its effect is influenced by the timeliness of lodgement of the application for review, and whether notice of the original, unfavourable, decision was provided to the person. The relevant provisions are as follows:
107 General rule
(1) Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.
...
(3) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and
(b) the person is given a notice informing him or her of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the application for review was made.
Subdivision B—Determinations under section 78, 81A, 85 or 85A
108Definition
In this Subdivision:
favourable determination means a determination under section 78, 85 or 85A.
109 Date of effect of favourable determination resulting from review
(3) If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)the person is not given notice of the original decision; and
(c)the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
12. A person’s entitlement to continue receiving disability support pension while outside Australia for an extended period is defined by the portability provisions of the Act. Section 1217, as the Act stood at the time of Mr Aslimoski’s departure from Australia in December 2003, relevantly provided that a person who was receiving a disability support pension but was not severely disabled might continue to receive that pension for a maximum period of absence of 26 weeks (the maximum portability period). A severely disabled person had an unlimited portability period. Subsection 1218C relevantly provided that where the Secretary was satisfied that the person was unable to return to Australia because of specified events which occurred while a recipient of a benefit was absent overseas, the Secretary could extend the maximum portability period. These specified events include, but are not limited to, incidents such as serious illness, hospitalisation, or the death of a family member. The maximum portability period then became the period as set by the Secretary.
13. Section 237 of the Administration Act provides that notice of decisions under social security law may be given by posting a prepaid letter to the last known postal address of the person. Section 29 of the Acts Interpretation Act 1901 provides that where notice is to be provided to a person, a letter posted to the last known address of the person is deemed to have effected notice.
The facts
14. Centrelink, the Secretary’s delegate under social security law, granted Mr Aslimoski disability support pension on 9 January 2003 and informed him of this decision by letter on 17 January 2003.[1] That letter included advice that if he travelled outside Australia he must inform Centrelink. In a letter to this Tribunal dated 10 March 2010, Mr Aslimoski states that he was unaware that he had an obligation to advise Centrelink if he were to travel overseas.[2] Mr Aslimoski repeated those statements at the hearing, noting that he could not recall receiving the letter of 17 January 2003.
[1] T8.
[2] Exhibit A2.
15. Mr Aslimoski is shown by immigration records to have left Australia on 19 December 2003, returning to Australia on 24 April 2006.[3] There is no record that he advised Centrelink that he planned to travel overseas, nor does Mr Aslimoski assert that he did so. Mr Aslimoski’s disability support pension continued to be paid until 20 June 2004.[4]
[3] T41.
[4] T13.
16. On 10 May 2004 Centrelink sent a letter to Mr Aslimoski suspending his disability support pension because he had failed to attend an interview.[5] There is no further evidence before the Tribunal regarding that interview, its date or purpose. On 16 May 2004, Centrelink sent a letter to Mr Aslimoski requesting that he attend a further interview on 30 June 2004, in order to ensure that he was being paid benefits at the correct rate.[6] On 17 June 2004 Centrelink sent a further letter to Mr Aslimoski restoring his pension from 10 May 2004, the date from which it had previously been suspended.[7]
[5] T10.
[6] T11.
[7] T12.
17. Mr Aslimoski’s disability support pension was suspended or cancelled from 21 June 2004, although there appears to be no record of a decision to that effect, and no notification of the decision appears to have been sent to Mr Aslimoski. A letter was sent to him on 21 June 2004, but it did not advise him that his pension was suspended or cancelled, although it did include a further warning that he must advise Centrelink if he proposed to travel overseas.[8]
[8] T13.
18. After Mr Aslimoski returned to Australia in April 2006, he sought review on 2 May 2006 of the decision in 2004 to cancel or suspend his pension.[9] It appears that no action was taken on the application until over two years later (see paragraph 22 below).
[9] T15.
19. At this time, Mr Aslimoski also applied for disability support pension in an application dated 2 May 2006, but received by Centrelink on 8 May 2006.[10] On the same day, Mr Aslimoski submitted supporting information in the form of a Treating Doctor’s Report and a statement of income and assets.[11] Centrelink sent two letters to Mr Aslimoski on 13 May 2006 seeking further information, which he responded to on 18 May 2006.[12] Mr Aslimoski departed Australia on 18 May 2006.[13]
[10] T17.
[11] T18, T19.
[12] T20, T21, T22.
[13] T41.
20. Centrelink sent Mr Aslimoski another letter seeking further information on 2 June 2006.[14] On 3 July 2006, Centrelink rejected Mr Aslimoski’s application for disability support pension for failing to attend a job capacity assessment appointment.[15] Again, there is no further evidence before me regarding that intended appointment or its date.
[14] T24.
[15] T25.
21. Mr Aslimoski returned to Australia on 20 November 2008.[16] On 11 February 2009 he applied for review of the decision in 2004 to suspend or cancel his disability support pension,[17] noting that he was yet to receive a response to his application for review in May 2006. Mr Aslimoski sought payment of his disability support pension for the period from 23 June 2004 to 23 December 2008. Subsequently, both the Authorised Review Officer who undertook the first review, and the Social Security Appeals Tribunal, treated the application as covering both the 2004 decision and the 2006 decision.
CONSIDERATION
[16] T41.
[17] T31.
The 2004 decision
22. I accept that Mr Aslimoski had been validly given notice of his requirement to notify Centrelink of proposed overseas travel. A letter containing the requirement had been sent to the postal address given in his claim for DSP and by section 29 of the Acts Interpretation Act 1901 is deemed to have been delivered. I also accept, and Mr Aslimoski does not contest, that he travelled overseas in December 2003 without notifying Centrelink. The notice given to Mr Aslimoski on 17 January 2003 constituted notice under section 68 of the Administration Act, as the change in circumstances, overseas travel, could affect Mr Aslimoski’s eligibility to continue receiving the disability support pension through the operation of the portability provisions in the Act.
23. Mr Aslimoski’s maximum portability period depends on whether he is severely disabled or not. As noted above, the maximum portability period for a recipient of disability support pension, other than a severely disabled person, as the Act stood in 2004, was 26 weeks for an absence for any purpose. For a severely disabled person the period was unlimited. The term ‘severely disabled person’ is defined in section 23(4B) of the Act as someone who is sufficiently impaired as to be unable to work for the next two years and unable to benefit within two years from a program of assistance or rehabilitation.
24. The treating doctor’s report submitted in November 2002 in support of Mr Aslimoski’s application for disability support pension states that his disability was ‘sufficient to prevent full-time employment’.[18] His medical assessment report states that he was ‘unable to do any physical work’ and that he could ‘only do sedentary work’.[19] This was almost a year before his departure for Macedonia, but the Treating Doctor’s Report submitted in support of his 2006 claim for DSP advises that he was ‘unable to work as a builder’. I conclude, on the evidence before me, that Mr Aslimoski’s disability was not severe in the terms set by the Act,[20] and find that his maximum portability period was 26 weeks. The result is that his maximum portability period expired 26 weeks after his departure from Australia, on Friday 18 June 2004. The cancellation of Mr Aslimoski’s pension by Centrelink took effect on Monday 21 June.
[18] T5.
[19] T7.
[20] Cf Re Secretary, Department of Social Security and Tsakrios [1994] AATA 32.
25. The consequences of non-compliance with the requirement to notify Centrelink of plans to travel overseas, set out in section 81(3), are that the Secretary may suspend or cancel the payment, but only if the decision is made before expiry of the maximum portability period. Once the portability period has runs its course, the Secretary, and on review, the Tribunal, cannot retrospectively suspend or cancel the payment. Mr Aslimoski received DSP up to 20 June 2004, but his DSP was not payable after 20 June 2004, unless his portability period was extended under section 1218C of the Act.
26. The SSAT, in reviewing the 2004 decision, considered extending Mr Aslimoski’s portability period. Mr Aslimoski stated before the SSAT that his father died while he was in Macedonia, but he has not pressed that matter before the Tribunal. Before the Tribunal, Mr Aslimoski has made claims only in respect of his medical condition and treatment.
Mr Aslmoski’s medical treatment in Macedonia
27. Mr Aslimoski’s disability support pension was originally granted in light of an ongoing condition, diagnosed in his Treating Doctor’s Report by Dr Pr Renshaw as ‘possible early rheumatoid arthritis’.[21] Mr Aslimoski’s medical assessment report for Centrelink by Dr D Singh-Pandher, dated 10 January 2003, records a diagnosis of rheumatoid arthritis and notes that Mr Aslimoski had ‘ongoing significant joint arthritis not responding fully to treatment’, that he was ‘not responding to NSAID medication’ and that he suffered from progressive pain in all his joints including his lower back.[22]
[21] T5.
[22] T7.
28. Mr Aslimoski states that during his visit to Macedonia in 2003-2006:
(a)he suffered lower back pain in June 2004;
(b)he was referred for X-rays and received a diagnosis (in Latin) of Lumboischialgio.l Dex. Discus Hernia;
(c)he underwent an operation;
(d)he was not deemed medically fit to return to Australia until 2006.
29. Supporting evidence for this claim comprises:
(a)two notes from St Erazmo Special Hospital for Orthopaedic Surgery and Traumatology in Ohrid, Macedonia, in the Macedonian language, with an authorised English translation, dated 21 October 2009 and 29 October 2009. This referred to Mr Aslimoski’s condition at that time as having been ‘[f]ive years since surgical resolution of lumbar discus’ and providing the diagnosis identified in paragraph 21(b) above;[23]
(b)a note to Centrelink from Dr G N Sukumar, of the Crawford Street Medical Clinic in Queanbeyan, dated 26 May 2009, advising that Mr Aslimoski suffers from ‘chronic back pain’ and that he had lumbar fusion in 2004;[24]
(c)the Treating Doctor’s Report provided by Dr G N Sukumar in support of Mr Aslimoski’s May 2006 claim for DSP, dated 7 May 2006, which notes that Mr Aslimoski had ‘L4/L5/S1 spinal fusion’ in July 2004;[25] and
(d)a letter from Dr Bryan Ashman, orthopaedic surgeon of Canberra Orthopaedic Group, to Dr Peter Renshaw, noting that Mr Aslimoski underwent a diskectomy in Macedonia in July 2004. Dr Ashman described Mr Aslimoski’s condition on the basis both of a consultation and through viewing a recent MRI scan of the lumbar region.[26]
[23] Exhibit A1.
[24] Exhibit R1.
[25] T18.
[26] T23.
30. Mr Aslimoski has a history of arthritic problems and his assertions regarding the need for intervention while he was in Macedonia in 2004 are supported by later medical evidence. Although the evidence from doctors’ reports might, to some extent, reflect simply what Mr Aslimoski had told them of his history, it seems unlikely that they would not have examined his back, and hence would have seen any surgery scars, and at least one specialist had viewed an MRI image. I find that, on the balance of probabilities, he was hospitalised and underwent an operation during his stay in Macedonia in 2004.
31. I note that in 2004 there seems to have been a degree of administrative confusion in Centrelink. This is shown by the fact that Mr Aslimoski’s pension was cancelled and then reinstated, an appointment was made for 30 June 2004 and then the pension was cancelled before the date for the appointment arrived, no notice of the decision on 21 June 2004 was sent (and indeed the evidence before me includes no record of the decision or account of how it came to be made), and the review application which Mr Aslimoski lodged two years later in regard to the 2004 decision drew no response from Centrelink until a further two years had elapsed. These matters do not affect the way social security law applies to Mr Aslimoski, but perhaps they influence the way in which the discretion under section 1218C should be exercised, bearing in mind the beneficial and remedial nature of social security law.
32. Mr Aslimoski should have the benefit of the discretion to extend the maximum portability period, as provided in section 1218C. In the circumstances, it is reasonable that his portability period should be extended on account of his hospitalisation and the need for him to make a recovery after surgery. As for the length of any extension, the SSAT decided that a further 26 weeks was appropriate. The Act allows further extensions to be made, to create a longer maximum portability period. Mr Aslimoski says he was unable to return to Australia until 2006, although he has advanced no additional evidence to support that assertion. If taken at face value, that claim might be held to suggest that a longer portability period would be warranted. I do not take that view; given that Mr Aslimoski has advanced no evidence to corroborate his continuing health problems beyond the time of his operation in mid-2004, I am of the view that an extension of 26 weeks is reasonable.
33. The decision to extend the maximum portability period is a favourable decision in terms of section 108 of the Administration Act. As no notification to suspend or cancel Mr Aslimoski’s DSP from 21 June 2004 was sent to him, section 109(3) of the Administration Act applies. My decision, by virtue of that section, takes effect from the date the original decision to suspend or cancel Mr Aslimoski’s pension took effect, that is, from 21 June 2004.
The 2006 decision
34. The decision not to grant Mr Aslimoski disability support pension in 2006 requires separate consideration. Mr Aslimoski returned to Australia on 24 April 2006 and made a claim for reinstatement of his disability support pension. On the evidence, it seems Centrelink was unable to complete the process of gathering information to decide what benefits Mr Aslimoski was entitled to before Mr Aslimoski departed for Macedonia on 8 May 2006. In particular, a letter from Centrelink dated 2 June 2006 asked Mr Aslimoski for information relating to his assets, and Mr Aslimoski, having departed for Macedonia, did not respond.[27]
[27] T24.
35. In a letter dated 3 July 2006, Centrelink advised Mr Aslimoski that it had rejected his application because he had not attended a job capacity assessment appointment. There is no other evidence available to me regarding that appointment; it is clear, however, that subsection 64(1) applies to Mr Aslimoski in these circumstances. A requirement had been made in the letter of 2 June 2004 under subsection 63(2) for information to be provided to the Secretary.[28] That requirement was reasonable, as, if DSP were to be granted, the rate at which it is calculated takes into account a claimant’s assets under section 1064 of the Act.[29] Mr Aslimoski did not comply with the requirement. Further, I find that Mr Aslimoski did not have a reasonable excuse. Leaving Australia before his claim was determined was clearly unreasonable; it was contrary to advice from Centrelink, repeated on a number of occasions. The need to advise Centrelink of plans to travel overseas is certainly something of which he was, or ought to have been, aware.[30] I am satisfied that subsection 64(1) should apply in these circumstances. I therefore find that DSP was not payable to him, and his claim was correctly rejected.
[28] Cf Re Dos Santos and Secretary, Department of Family, and Community Services [2003] AATA 432.
[29] Cf Re Glazebrook and Secretary, Department of Social Security [1996] AATA 557.
[30] Cf Re De Beer and Secretary, Department of Family and Community Services [2004] AATA 598.
36. Mr Aslimoski was overseas and apparently did not receive the letter from Centrelink advising that his claim had been rejected. Nevertheless, the letter was posted to his last known address, that given in his claim for DSP lodged in May 2006, and is deemed to have been delivered. Mr Aslimoski claims that he only became aware of his rejection on returning to Australia in late 2008. He applied for review of the 2004 decision on 11 February 2009. I note that under section 107(3), even if a favourable review of the 2006 decision were to be made, because more than 13 weeks had elapsed from the date of the 2006 decision until the date of application for review, the date of effect of such a favourable decision would be from the date of application for review, that is, from 11 February 2009. Mr Aslimoski had his DSP claim restored from November 2008 and thus a favourable decision would be of no effect.
37. It is clear from Mr Aslimoski’s letters, submissions and oral statements at the hearing, that he believes, having worked for most of his life in Australia and paid taxes here, he should be entitled to receive DSP whether he continues to live here or not. Further, he is of the belief that the medical treatment he receives in Macedonia is better, cheaper and more accessible than he can obtain in Australia, and that it is unfair that he is unable to receive DSP while living in Macedonia simply because Australia has no international agreement with Macedonia. These are disagreements with the legislative scheme itself. It is apparent that neither the Tribunal, nor any other review mechanism available to Mr Aslimoski, is able to change the legislative scheme under which Centrelink operates. The channels through which these issues could be taken up include a local Member of Parliament or through correspondence with the relevant Minister.
Decision
38. The decision under review is affirmed.
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