Barta and Secretary Department of Employment and Workplace Relations

[2006] AATA 883

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 883

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2006/713

GENERAL APPEALS  DIVISION		)
Re		LADISLAVA BARTA

Applicant

And SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms G Ettinger – Senior Member

Date18 October 2006      

PlaceSydney 

Decision The decision under review is affirmed.

…………………………….
  Ms G Ettinger
  Senior Member

CATCHWORDS

Disability Support Pension – Portability – Amendments to legislation effective 1 July 2004 – Applicant informed of changes & advised a course of action which she did not take – Applicant does not meet all the tests in section 1218AA(1) – not terminally ill - Decision under review affirmed.

Social Security Act 1991 ss 1217(4), 1218AA(1), clause 135 of Schedule 1A

REASONS FOR DECISION

18 October 2006  Ms G Ettinger, Senior Member

1.        Mrs Ladislava Barta is a 60 year old woman originally from Czechoslovakia, now the Czech Republic, who first came to Australia in 1980. She is divorced, and has a son born in the former Czechoslovakia in 1968, who lives in Australia, and who she says, has mental disorders, and has now suffered a stroke.  She herself has been ill, and has been receiving benefits, now known as Disability Support Pension, for over twenty years.

2.        Mrs Barta left Australia in 1997, and lived in the Czech Republic from 1997 until her return to Australia in February 2004. She said she left her sick and aged mother whom she had been tending, to return and visit her son in Sydney.  Mrs Barta’s expectation has been that her DSP would continue indefinitely. However the legislation has been amended, and commencing 1 July 2004, portability is, with some exceptions, only available for a matter of 13 weeks post departure from Australia. The Respondent relies on evidence of correspondence to and from Mrs Barta in that regard, and submits that she was informed that if she was outside of Australia on the relevant date, 1 July 2004, her portability would come under the original ruling, and continue indefinitely. Mrs Barta was, however, in Australia on that date, and finds herself subject to the amended legislation. It is against such a ruling that she comes before this Tribunal.

3.        As noted above, there is a certain discretion which can in certain circumstances be exercised, and should Mrs Barta be found to be suffering a terminal illness, then she could, provided she meets the other relevant tests in the legislation, be exempted from the current ruling. In Dr Stepan’s report of 11 November 2005 (Exhibit A8), he lists Mrs Barta’s main complaints as chronic anxiety, panic disorder, intermittent recurrent depression, alcohol dependence, and various physical complaints. Dr Bartipan has added hypertension, severe vertigo and chronic abdominal pain to the list. A medical report translated from the Czech language also mentions myocardial infarction and ischaemic heart disease. I am accordingly mindful that Mrs Barta suffers various conditions. However, none of the medical evidence before me was able to support her contention that she is terminally ill.

4. Ms Barta was self represented, and Mr G Lozynsky appeared on behalf of the Repatriation Commission. Mrs K Steiner, a most competent interpreter in the Czech language, assisted. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and Exhibits A1 – A16 which were documents relevant to Mrs Barta, and consisted mainly reports of her treating psychiatrist Dr P Stepan of Sydney, and Dr M Bartipan, her general practitioner.

ISSUE BEFORE THE TRIBUNAL

5.        The issue before the Tribunal was whether Mrs Barta could come under any exemption with regard to the new rules regarding portability which now limit portability of her DSP to 13 weeks after leaving Australia.

LEGISLATIVE ENVIRONMENT

6. The relevant legislation to consider in this matter is the Social Security Act 1991 (“the Act”), in particular sections 1217 and section 1218AA which are concerned with portability.

EVIDENCE AND FINDINGS

7.        Mrs Barta, who currently 60 years of age, told me she had been receiving benefits in excess of 20 years. She said that when she first came to Australia in 1980, she was initially working in factories. Her son, who was born in the former Czechoslovakia, in 1968, is in Australia. Mrs Barta told me that he is homeless, suffers schizophrenia, has addictions, and has recently suffered a stroke. Mrs Barta said that she made a number of trips to the Czech Republic to visit her mother who is now 82 and ill, and that from 1997 to February 2004 she lived there. She returned, she says, because the hospital where her son had been for ten months, called her, telling her he was very ill. 

8.        Mrs Barta said that she has conflicts regarding where she is needed, in Australia assisting her very sick son, or in the Czech Republic where her mother needs her assistance. Mrs Barta told me her conditions include bad nerves and chronic pain, and also said that she had had a procedure for her heart in approximately mid 2004. She was also in custody in Mulawa Prison from 8 July 2004 to 27 January 2005 after being sentenced there.

9.        Mrs Barta said since she has been back, she attends at her psychiatrist Dr Stepan every fortnight, and her general practitioner, Dr Badipan at similar intervals. She said that in the Czech Republic she also attends medical practices.

10.      I noted that Mrs Barta replied to questions asked of her in cross-examination which indicated that notwithstanding her conditions, she can care for herself, cook for herself, shop, dress herself, do some household chores, washing, use public transport and walk short distances. She indicated that she tires easily. Mrs Barta also says that she has four other siblings in the Czech Republic, and they share the care of her mother with her.

11.      Mrs Barta was asked about receipt of Centrelink correspondence. Copies of such correspondence in connection with the amendment of the legislation effective 1 July 2004 which would alter portability of pension entitlements, was on file (T19/71 dated 22 March 2004, T17/68 dated 27 January 2004, T24/77 dated 26 May 2004, and at T21/74  a record of telephone advice on the subject dated 10 May 2004 ).  In these letters and in the telephone call recorded at T21/74, Mrs Barta was advised about changes to portability, and advised that if she was outside the country on the effective date, she would be able to retain her portability under particular circumstances.

12.      Mrs Barta’s replies to questions were evasive notwithstanding the assistance of a most competent and patient interpreter in the Czech language. She insisted in most cases that the letters had not been received, even though I was satisfied from the evidence that they had been sent to the correct addresses. Finally, Mrs Barta admitted that she might have heard about the changes to the legislation, but did not want to believe that the legislation existed, (as she put it), neither that it would be so harsh. She said that she had been back in Australia for such a short time (having only arrived back in February 2004), wanted to see her son, and did not want to leave after such a short time.

13.      I was mindful that, although the letter was not available in the T-documents or through Mr Lozynsky, there was evidence Mrs Barta had written to Centrelink dated 20 May 2004, because Centrelink acknowledged that letter in its letter of 26 May 2004 (T24/77). 

CONCLUSIONS

14. I was mindful that from 1 July 2004, section 1217 of the Act determines a maximum portability period of 13 weeks for certain pensions, including DSP, which Mrs Barta receives.

1217.(4)   Meaning of portability period if maximum portability period limited

1217.(4)  If the person's maximum portability period for the payment is a period of weeks, the person's portability period for the payment, in relation to the period of absence, is the period:

(a) beginning at the commencement of the period of absence; and

(b) ending at the earlier of the following times:

(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

(ii) the end of the period of weeks the person's maximum portability period for the payment.

Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.

Portability of social security payments
Column 1	Column 2	Column 3	Column 4	Column 5
Item	Payment	Person	Absence	Maximum portability period
1	Age pension	All persons	Any absence	Unlimited period
3	Disability support pension	All persons	Any absence	13 weeks (but see also section 1218AA)
4	Wife pension	Entitled person	Any absence	Unlimited period
5	Wife pension	Person other than entitled person	Any absence	13 weeks
6	Carer payment	All persons	Any temporary absence	13 weeks

15. There are also exemptions available from that pursuant to clause 135 of Schedule A and section 1218AA(1) of the Act.

Unlimited maximum portability period for disability support pension

135.(1) The Secretary may determine that a person’s maximum portability period for disability support pension is an unlimited period if:

(a) at the commencement of this clause, the person is absent from Australia and receiving disability support pension; and

(b) under this Act as in force immediately before the commencement, that absence could not affect the person’s right to continue to be paid the disability support pension throughout the period of that absence; and

(c) after the commencement, the person enters Australia but does not become an Australian resident again.

16.      I was satisfied from the correspondence which I accept was sent to Mrs Barta from Centrelink (T19/71 dated 22 March 2004, T17/68 dated 27 January 2004, T24/77 dated 26 May 2004, and at T21/74 a record of telephone advice on the subject dated 10 May 2004, that she was notified that pursuant to clause 135 of Schedule 1A, that if she was absent from Australia at 1 July 2004, she would be covered by conditions which prevailed prior to 1 July 2004. That would have meant not being subject to the 13 week portability period.

17.      In that regard I am also mindful of Mrs Barta’s evidence, first that she did not receive such correspondence, and later that she did not believe the new legislation could affect her so harshly.

18.      However the fact is Mrs Barta was not absent from Australia on 1 July 2004, and cannot therefore satisfy the conditions in clause 135(1)(a), and unless a discretion can be applied pursuant to section 1218AA(1), she remains subject to the 13 week portability rule.

19.      Accordingly, I then considered the application of section 1218AA(1) which follows as relevant.

1218AA.(1)  The Secretary may determine that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

(a) the person is severely disabled (see subsection 23(4B)); and

(b) the person is receiving disability support pension; and

(c) the person is terminally ill; and

(d) the person's absence from Australia is or will be permanent; and

(e) the purpose of the person's absence is:

(i) to be with or near a family member of the person (see subsection 23(14)); or

(ii) to return to the person's country of origin.

20.      In that regard, I noted that the Respondent did not argue that Mrs Barta did not met subsections (a), (b). However, Mr Lozynsky argued that none of the medical evidence indicated that Mrs Barta is terminally ill (section 1218AA(1)(c)). I have noted the definition of terminal illness which follows.

Terminal illness

Manifest inability to work is accepted if medical evidence indicates the customer’s current medical condition (1.1.M.90) is chronic and debilitating with a prognosis (1.1.P.440) that the condition is terminal, AND life expectancy is 24 months or less.

21.      Mrs Barta submitted that she was terminally ill, and said that given her blood pressure and cholesterol, she could die tomorrow (meaning the day after the hearing). In that regard I noted that none of the doctors have suggested in their reports that Mrs Barta is terminally ill, she is booked to travel to Europe on 6 October 2006 on Lufthansa, she has taken out no travel insurance, and she has not told Flight Centre or the airlines that she is ill at all, much less terminally ill. When asked why she had not disclosed her illness to the airlines, Mrs Barta said that she did not know that she had to. Mrs Barta also agreed when questioned that none of the doctors had advised against the long trip for health reasons.

22.      I am mindful that to qualify for an exemption to the 13 week portability rule pursuant to section 1218AA(1), Mrs Barta has to satisfy all the subsections (a) to (e). I am satisfied from the evidence before me that she is not terminally ill (section 1218AA(1)(c)), so I do not need to consider the rest of the subsections.

23.      Accordingly I cannot be satisfied that Mrs Barta satisfies the conditions in order to benefit for an exemption under the new reduced portability of DSP. Accordingly I cannot exercise the discretion in her favour, and her application must fail.

DECISION

24.      The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  4 October 2006
Date of Decision  18 October 2006
The Applicant  Self Represented
Respondent’s Advocate           Mr G Lozynsky