Burlock and Secretary, Department of Social Services

[2014] AATA 267

[2014] AATA  267

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4678
Re	Dean Burlock
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	6 May 2014
Place	Brisbane

The Tribunal affirms the decision under review.

................................Sgd........................................

Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Applicant in receipt of disability support pension – Applicant resided overseas for more than 6 week portability period – Whether portability can be extended due to illness of the applicant – Whether applicant suffered ‘serious illness’ during portability period – Decision under review affirmed

LEGISLATION

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

SECONDARY MATERIALS

Guide to Social Security Law, Australian Government

Macquarie Dictionary Sixth Edition (Published October 2013) Australia

REASONS FOR DECISION

Dr M Denovan, Member

6 May 2014

INTRODUCTION

1. The applicant, Mr Dean Burlock, was in receipt of DSP (“disability support pension”) when he departed Australia for the United States on 10 April 2013. Mr Burlock remained in the United States and his DSP was suspended on 22 May 2013 because he exceeded the maximum portability period of six weeks.

2. On 22 June 2013 Mr Burlock sought reconsideration of the decision to suspend his DSP. He claimed he was unable to return to Australia prior to the portability period lapsing because he was seriously ill. On 25 July 2013 the decision was affirmed by an authorised review officer.  The SSAT affirmed the decision on 27 August 2013. Mr Burlock returned to Australia on 20 August 2013.

3. The application for review of the decision by the Administrative Appeals Tribunal was lodged on 12 September 2013.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

4. The Social Security Act 1991 (Cth) (“the Act”) sets out relevant legislation in this matter. Policy advice contained in the Guide to Social Security Law (“the Guide”) is also relevant.

5. Section 1217 of the Act identifies that the maximum portability period for DSP is

   
   

   6 weeks. In some very limited circumstances, a person’s maximum portability period for social security payments can be extended.[1] These provisions in the legislation that allow extension do so only for unusual and extreme circumstances, such as terminal or severe illness of the applicant or a family member, natural disaster, political unrest and criminal proceedings. Most of the provisions allowing extension of the portability period are not relevant to Mr Burlock’s claim. Of relevance is s 1218C(1)(b) which, amongst other things, allows the extension of a person’s maximum portability period if the Secretary is satisfied that the person is unable to return to Australia because of a serious illness.

   [1] Sections 1218AAA, 1218AA, 1218AB, 1218 and 1218C of the Act.

6. The dates of Mr Burlock’s departure and return to Australia in 2013 are not in dispute. Mr Burlock understands that he exceeded the maximum portability period. The issues before me are whether Mr Burlock’s maximum portability period can be extended beyond the usual 6-week period and, if so, to what date that extension should be granted.

   CONSIDERATION

7. Mr Burlock arrived in the United States on 10 April 2013. He said he spent his time in Los Angeles (“LA”) looking for acting work, and hanging out with other occupants of the hostel he was residing in. He did not visit theme parks because he had already visited these on an earlier visit to LA. He went clubbing with other residents, however had to stop when he became ill.

8. He claims he became unwell as a result of the pollution in LA and also because he caught a flu-like infection from other persons staying at the same hostel. Mr Burlock claims these symptoms were so severe he was unable to travel. Although residing in the

   
   

   United States from 10 April 2013, the pollution apparently did not cause Mr Burlock to become ill until 20 May 2013, two days prior to the end of his allowable 6-week portability period.

9. In order for illness to be a valid reason to extend a person’s period of maximum portability, the illness must have occurred or begun during the allowed period of absence. Mr Burlock’s allowable portability period ended on 22 May 2013.

10. The legislation does not allow for a person’s maximum portability period to be extended if they temporarily become sick or they develop any illness. What is required is a serious illness. Serious is defined in the dictionary as “giving cause for apprehension; critical”.[2] The Guide states that in applying the discretion to extend a person’s portability, it is necessary that the matter affecting the person, in this case an illness, is so serious that the person is prevented from returning to Australia. In my opinion, to satisfy the legislative requirement, a person’s illness would need to require immediate medical attention, and may likely even require hospitalisation. There would potentially be a need for urgent investigations and/or treatment, which could not be delayed or postponed until the person returned to Australia without the risk of serious detriment to the person.

    [2] Macquarie Dictionary Sixth Edition (Published October 2013) Australia.

11. Mr Burlock describes having symptoms that were uncomfortable and unpleasant.

    
    

    He does not describe having symptoms or signs that were critical or cause for apprehension. Although Mr Burlock claims he was too unwell to travel, the medical evidence he provided does not support this. Dr Lunsford gave no details about

    
    

    Mr Burlock’s symptoms. Dr Lee stated that Mr Burlock had been diagnosed with a number of conditions and noted his associated medications. Although both doctors requested Mr Burlock be excused from travel whilst he underwent treatment and investigation, only Dr Lee indicated that Mr Burlock was unable to travel due to the mentioned conditions of low back pain, migraine, depression and vertigo. These conditions are all common, and it is not usual for them to prevent a person from travelling. There is no explanation in the doctor’s report as to why these conditions might prevent Mr Burlock from travelling.   Dr Lee’s report is written many weeks after

    
    

    Mr Burlock’s portability period expired, hence even if she was correct, I am not satisfied that Mr Burlock suffered from any illness at any time during the relevant 6-week period after he left Australia, which preventing him from travelling. Mr Burlock claims he was prescribed antibiotics. There is no evidence before this Tribunal that suggests that

    
    

    Mr Burlock actually underwent any investigation of, or treatment for, illness.

12. Although both doctors indicated that Mr Burlock had symptoms from 20 May 2013, I consider that that is because they are reporting information provided by Mr Burlock, when they saw him in June 2013 and July 2013 respectively.  Mr Burlock claims that both doctors identified the date of commencement of his illness because they had firsthand knowledge of when he got sick, as he had been ringing both surgeries on occasions from the date he became unwell.  He claims to have discussed his symptoms of illness with the receptionist or possibly even with the doctor directly when he rang the surgeries. He cannot remember if he spoke to any doctor prior to the first consultation.

13. I do not find Mr Burlock to be a credible witness, and I do not accept that either doctor had any first hand knowledge of Mr Burlock’s illness prior to the first time he visited their respective surgeries. Neither doctor refers to Mr Burlock as having made contact with either themselves or the medical practice prior to attending in person in June and July respectively. There is no contemporaneous medical evidence to support

    
    

    Mr Burlock's claim that he was unwell prior to June 2013. I find that the doctors’ references to Mr Burlock being ill from May 2013 is a reflection of information reported to them by Mr Burlock, and not a true indication of Mr Burlock’s state of health.

14. Mr Burlock first saw Dr Lungsfield on 21 June 2013, and Dr Lee on 8 July 2013. Had he developed an illness of the severity envisioned by the legislation then I do not believe he would have been able to delay attending a doctor or a hospital for nearly one month after he contracted the illness, in spite of his financial difficulties which he claims were the cause of the delay. I do not accept that Mr Burlock suffered from a serious illness at any time during the six weeks after he left Australia in April 2013.

15. I find that even if Mr Burlock was unwell on or before 22 May 2013, he was not suffering from a serious illness at any time, and I am not reasonably satisfied that he was unwell at any time during the allowable portability period.

    CONCLUSION

16. Mr Burlock left Australia on 10 April 2013, and he failed to return to Australia before the expiration of the 6-week portability period. None of the legislative provisions which would allow the extension of the maximum portability period are satisfied.

    DECISION

17. 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 Dr M Denovan, Member

...............................Sgd.........................................

Associate

Dated 6 May 2014

Date of hearing	4 April 2014
Applicant	In person
Solicitors for the Respondent	Nicholas Warren, Department of Human Services