Barnes and Secretary, Department of Social Services (Social services second review)

[2018] AATA 4594

Barnes and Secretary, Department of Social Services (Social services second review) [2018] AATA 4594 (14 December 2018)

Division:GENERAL DIVISION

File Number(s):      2018/3187

Re:Ronald Barnes

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 December 2018

Place:Sydney

The decision under review is affirmed.

.......................[sgd]............................................

Senior Member A Poljak

CATCHWORD

SOCIAL SECURITY – disability support pension – suspension of payment – maximum portability period – whether portability period should be extended – whether applicant unable to return to Australia because of event which occurred or began during period of absence – serious illness of an extreme or emergency nature – treatment or recovery that could be undertaken in Australia – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) s 80

Social Security Act 1991 (Cth) ss 1217, 1218C

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Senior Member A Poljak

14 December 2018

1. Mr Barnes, the applicant, has been in receipt of the disability support pension (“DSP”) since 8 January 2013.

2. The Department of Human Services (“Department”) records show that the applicant travelled overseas temporarily on two occasions within a 12 month period. The first trip was for 8 days from 11 April 2017 to 19 April 2017. The second trip was to the Philippines for 34 days from 29 December 2017 to 1 February 2018. The applicant’s DSP was suspended during his second trip overseas to the Philippines on 18 January 2018 because he had exceeded his maximum portability period of four weeks (28 days) in a 12 month period. His DSP payment was restored on his return to Australia on 1 February 2018.

3. In these proceedings, the applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) made on 24 May 2018. In its decision, the SSCSD affirmed the decision of an Authorised Review Officer (“ARO”) of the Department made on 12 April 2018, which affirmed the original decision of the Department to suspend the applicant’s DSP during the period 18 January 2018 to 31 January 2018 (“the suspension period”). This is the decision under review in these proceedings.

   Issue

4. The issue to be determined in these proceedings is whether the applicant’s DSP was correctly suspended during the suspension period.

   Relevant Legislative Provisions

5. Section 80 of the Social Security (Administration) Act1999 (Cth) (“the Administration Act”) allows for a payment to be suspended or cancelled if a person is no longer qualified to receive it.

6. Chapter 4, Part 4.2 of the Social Security Act 1991 (Cth) (“the Act”) sets out the provisions relating to overseas portability. Section 1217 of the Act contains a table which specifies the portability periods in relation to different social security payments. In summary, it provides that in relation to the DSP, unless a person is severely impaired or has a terminal illness, the maximum period for which a person can be paid DSP while temporarily overseas is 28 days (or four weeks) in a 12 month period (“the portability period”).

7. Section 1218C(1) of the Act provides that the Secretary may extend a person’s portability period for the payment of DSP if the Secretary is satisfied that the person is unable to return to Australia because of a number of specified events. Relevantly:

   (1)  The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

   (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;…

8. Section 1218C(2) provides that the Secretary must not extend the person’s portability period under subsection 1218C(1) unless the event occurred or began during the period of absence.

9. Instruction 7.1.2.10 General Rules of Portability of the Guide to Social Security Law (“the  Guide”) provides that the event preventing a person’s return to Australia must be extreme or of an emergency nature and must have occurred or began during the allowable portability period. This Instruction also notes that extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia. The Guide is plainly relevant and Government Policy. It should be applied in the absence of cogent reasons to not follow such a policy: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

   Consideration and Decision

10. It does not appear to be in dispute that the applicant’s portability period ended on 17 January 2018 in accordance with section 1217(4)(b)(ii) of the Act as that was the end of the applicant’s maximum portability period for DSP; being the 28^th day he had been absent from Australia within a 12 month period. The applicant alleges that his portability period should be extended under section 1218C(1)(b) as he claims that he could not return to Australia on 18 January 2018 due to a serious injury.

11. The applicant has provided a number of handwritten statements in support of his application for review which I have read and considered. The statements detail, in summary, that he was not able to return to Australia on 18 January 2018 as he suffered severe nerve pain caused by a back massage he received on 14 January 2018 in Cebu, Philippines. The applicant reiterated this evidence at hearing. In a statement dated 5 December 2018, the applicant advised that while in the Philippines he was staying in the province of Cebu with his son. He claims that to return to Australia he had to take a five km tricycle trip to the main road; take a 2 ½ hour bus ride to Cebu city; take a 25 minute taxi ride to Mactan Domestic airport; wait two hours at the airport for a flight; take a one hour flight to Manila airport; walk 20 minutes to the International airport; wait another two hours at the airport; take an eight hour flight to Sydney airport; and then take a one hour drive to Berkshire Park. The applicant claims that due to his back injury he sustained on 14 January 2018, it was very difficult for him to travel due to the severe nerve pain.

12. The medical certificate of Dr De La Pena from the Alegria Health Center in Cebu, issued on 20 August 2018, confirmed that on 14 January 2018 the applicant was examined and treated for “severe lumbago”. It is noted in the medical certificate that the applicant was “unfit for travel for two weeks while on treatment and recovery”. In regards to treatment, the applicant’s evidence is that he was required to rest and have “rubdowns” with Voltaren (Deepheat). At hearing, he confirmed that the treatment was only of minor benefit and did not result in any substantial improvement in his symptoms.

13. On 28 January 2018, the applicant was prescribed pain medication in anticipation of his scheduled flight back to Australia on 1 February 2018. The applicant advised at hearing that with the pain medication he was able to undertake the trip without any major issues.

14. In a report dated 14 May 2018, Dr Virk, the applicant’s general practitioner, records that the applicant attended his surgery on four occasions in 2018, commencing 2 February 2018. He records that the applicant had a history of lower back pain, and he had a massage in the Philippines which resulted in his pain getting much worse and radiating to both thighs and feet. Dr Virk opines that due to the applicant’s severe back and leg pain he was unable to travel back to Australia on his scheduled flight. He confirms that the applicant was not fit to travel back to Australia earlier due to these unforeseen circumstances. This evidence however is inconsistent with the fact that the applicant’s scheduled return flight to Australia was always on 1 February 2018; he returned to Australia on this flight as scheduled.

15. It is plain that the applicant’s intention was always to return to Australia on 1 February 2018. Immediately prior to leaving Australia on 29 December 2017, the applicant notified the Department of his overseas travel and indicated that he had booked a return flight for 1 February 2018. While I accept that the evidence of Dr De La Pena confirms the applicant presented on 14 January 2018 with back pain and that he was advised to rest and recover for a couple of weeks, I am not convinced that the applicant’s alleged back injury prevented him from returning to Australia until 1 February 2018. As stated above, the applicant sought painkillers on 28 January 2018 and successfully returned home on his scheduled flight on 1 February 2018. Had he advised Dr De La Pena of his need to return to Australia by 18 January 2018 and received painkillers on 14 January 2018, the applicant may very well have undertaken travel back to Australia at that time. This is supported by the fact that despite taking Dr De La Pena’s original advice of rest and recovery for a couple of weeks post injury; there was no significant change in the applicant’s symptoms.

16. I accept that the applicant suffered an exacerbation of his lower back condition on 14 January 2018, and that this was within the allowable portability period. However there is a paucity of contemporaneous and detailed medical evidence regarding the applicant’s inability to return to Australia. Based on the available evidence, I am not convinced that the applicant’s back condition was a serious illness or of an extreme or emergency nature which prevented him from returning to Australia on or by 18 January 2018. The evidence demonstrates that the applicant was undergoing conservative treatment in the Philippines with little or no relief, and was able to return to Australia on his scheduled flight with the assistance of pain medication. Treatment and recovery that the applicant underwent in the Philippines for his lower back condition was treatment he would have had available to him upon his return to Australia (as envisioned by the Guide).

17. For the above reasons I find that the applicant’s back condition did not constitute an event for the purposes of section 1218C of the Act. Accordingly, the decision under review is affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

............................[sgd]........................................

Associate

Dated: 14 December 2018

Date(s) of hearing:	10 December 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services