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

[2015] AATA 811

Davies and Secretary, Department of Social Services (Social services second review) [2015] AATA 811 (8 September 2015)

Division	General Division
File Number	2015/1337
Re	Suzanne Davies
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President JW Constance
Date	8 September 2015
Date of written reasons	20 October 2015
Place	Sydney

IT IS DECIDED that the reviewable decision, being the decision of the Social Security Appeals Tribunal made 28 November 2014, is affirmed.

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

Deputy President J W Constance

CATCHWORDS

SOCIAL SECURITY - disability support pension - portability period - general extension to person's portability period - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 1218C(1), 1218(2)

WRITTEN REASONS FOR DECISION

(REASONS GIVEN ORALLY ON 8 SEPTEMBER 2015)

Deputy President JW Constance

20 October 2015

INTRODUCTION

1. Ms Davies was initially granted a Disability Support Pension in early 2007.

2. Under the provisions of the Social Security Act 1991 (Cth) the recipient of a pension can continue to be paid whilst temporarily overseas for a maximum period of six weeks. There are further provisions, to which I will refer later, which permit payment of a pension to be made for a longer period in specified circumstances.

3. During the second half of 2013 Ms Davies was absent from Australia for a period of just over 10 weeks. At the end of the first six weeks the Department suspended payment of her pension. This decision was affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal.

4. Ms Davies has applied to this Tribunal to review the decision of the Social Security Appeals Tribunal.

5. For the reasons which follow the decision under review will be affirmed.

FACTS

1. On 26 August 2013 Ms Davies left Australia and travelled to New Zealand. She did not return to Australia until 11 November 2013.

2. Ms Davies contacted the Department on 11 September 2013 and advised that she may be delayed in New Zealand as she was looking after her elderly mother for a short time.[1] 

   [1] Exhibit T1, p.195.

3. On 20 September 2013 Ms Davies was advised by the Department that it may be able to assess her eligibility for an extension of her portability period despite her lack of notification of her departure from Australia.  Without an extension her pension would be payable for a maximum portability period of six weeks.[2]

   [2] Exhibit T1, p.92.

4. On 7 October 2013 Ms Davies was notified that payment had been suspended as she had been overseas for more than six weeks.

5. Ms Davies advised the Department on 8 October 2013 that “the reason for [her] NOT being able to Air travel back to Australia is a deterioration of her POST TRAUMATIC STRESS DISORDER  [which] happened last week.” [3]

   [3] Exhibit T1,.194. P

6. Ms Davies returned to Australia on 11 November 2013 and her pension payments were restored from that date.

7. Dr Neuhauser, Ms Davies’ general practitioner, provided a certificate dated 11 December 2013,[4] in which he stated:

   Suzanne suffers from anxiety and depression. During her recent trip to New Zealand on the 26/08/2013, Suzanne planned to return home after 4 weeks. However, she suffered an exacerbation of her anxiety condition and was unable to fly home until her condition subsided. She was under the care of her family whilst she was there and also her local medical officer’s care.

   [4] Exhibit R1 p.104.

8. On 21 March 2014 Ms Davies wrote to Centrelink International Services advising, in part that ”I went to NZ due to ill health at the end of August 2013. I was unable to return after six weeks due to my ill-health.[5]

   [5] Exhibit R1 p.155.

9. In a letter dated 23 June 2014[6], addressed to Centrelink, Ms Davies stated:

   During my period in New Zealand from Aug – 26-2013 – 11 Nov 2013, on top of my already PTSD I had my mother’s legal issues to try and tend to, and her health issues.

   Aprox [sic] 14-10-13 my mother was admitted to New Plymouth Hospital in New Zealand. I do not have the paperwork in Australia.

   [6] Exhibit R1 p.172.

10. Ms Davies gave evidence that:

• she did not contact the Department on 11 September 2013 as recorded by an officer of Centrelink;

• in October 2013 she was “mentally exhausted” as a result of a personal matter involving her mother;

• she could not travel back to Australia alone in October 2013 as a result of her post-traumatic stress disorder,

• in addition she could not return to Australia in October 2013 by reason of the legal issues in which she was involved in New Zealand;  the legal proceedings caused her not to feel safe and required her to assist her mother;

• she was not hospitalised while she was in New Zealand and did not receive any treatment for her condition; her mother provided psychological support;

• she usually travels to New Zealand when she feels unwell to seek the support of her family;

• she returned to New Zealand on 13 December 2013 to escort her mother from Australia.

LEGISLATION

1. Section 1218C of the Act provides, in part:

   (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;

   ……

   (e) the person’s involvement in custody proceedings in the country in which the person is located;

   ……

   (2)The Secretary must not extend the person’s portability period under subsection (1) unless:

   (a)the event occurred or began during the period of absence; and

   (b)  if the event is political or social unrest, industrial action or war – the person is not willingly involved in, or willingly participating in the event.

2. Subsection 1218C(1) has 11 sub paragraphs, each setting out a specific event or specific events which may give rise to an extension of a person’s portability period.

CONSIDERATION

1. On the basis of Ms Davies’ statements in correspondence to Centrelink and her evidence before me, I am satisfied that she did not return to Australia before the end of the portability period either because of her post-traumatic stress disorder or because she was involved in, and assisting her mother in relation to, legal proceedings in New Zealand, or a combination of both.

2. Ms Davies evidence was at times inconsistent.  For example, on 11 September 2013 Ms Davies advised Centrelink that she could not return to Australia as she needed to remain in New Zealand to care for her mother. She made a similar statement in her letter dated 23 June 2014. However on 8 October 2013 and by letter of 21 March 2014 Ms Davies advised that it was her own ill-health which prevented her from returning.

3. I have taken into account that Ms Davies denies that she spoke to an officer of Centrelink on 11 September 2013. I do not accept that her recollection in this regard is accurate. The Centrelink officer made a file note of this conversation and I am satisfied on the balance of probabilities that this was an accurate record.

4. To the extent that Ms Davies experienced symptoms of post-traumatic stress disorder while she was in New Zealand, I am not satisfied that these symptoms were indicative of a “serious illness” within  the meaning of subsection 1218C(1)(b). Ms Davies was not hospitalised for this condition nor did she seek any medical treatment. Further, I am satisfied that Ms Davies suffered post-traumatic stress disorder for several years prior to the commencement of the period of her absence in New Zealand and therefore, by reason of the application of subsection 1218C(2), the portability period cannot be extended.

5. I am satisfied that the involvement of Ms Davies in legal proceedings, both on her own behalf and in her role as assisting her mother, was a major factor in her remaining in New Zealand. Involvement in such proceedings, not being criminal proceedings or custody proceedings, is not an event referred to in subsection 1218C(1).

6. There is insufficient evidence that Ms Davies’ mother suffered a serious illness during Ms Davies’ period of absence in New Zealand.

CONCLUSION

1. For the reasons stated above, the decision under review, being the decision of the Social Security Appeals Tribunal made on 28 November 2014, was affirmed.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 20 October 2015

Date of hearing	8 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services