Divanis and Secretary, Department of Education, Employment and Workplace Relations - [2010] AATA 633

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 633

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2010/1766

GENERAL ADMINISTRATIVE DIVISION )
RePENNY DIVANIS

Applicant

AndSECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

TribunalMs N Isenberg, Senior Member
Date24 August 2010
PlaceSydney
DecisionThe decision under review is affirmed.

..................[SGD]...........................
Ms N Isenberg
Senior Member

CATCHWORDS

Social Security Act 1991 ss 1217,1218C

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82.

Re Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194;

Re Manolev and Secretary, Department of Family and Community Services (2005) 88 ALD 794.

Re Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989

Guide to Social Security Law, 7.1.2.10

REASONS FOR DECISION

24 August 2010

Ms N Isenberg, Senior Member

Mrs Divanis’ widow’s allowance was cancelled when she remained out of Australia for more than 13 weeks. She seeks payment for the balance of her absence.

Background

Mrs Divanis was paid widow allowance since 19 October 2000. On 30 March 2009 she contacted Centrelink and advised that she needed to stay in Greece for six months and provided a letter from her general practitioner (GP) to that effect. When Mrs Divanis advised Centrelink that she intended to go to Greece on 3 May 2009, Centrelink advised her in a letter on 22 April 2009 that her widow allowance would stop if she was outside Australia on 2 August 2009. On 3 May 2009 Mrs Divanis left Australia as planned.
On 4 August 2009 Centrelink advised Mrs Divanis her allowance had been stopped, as it had foreshadowed. On 27 October 2009, when Mrs Divanis returned to Australia, Centrelink restored her widow allowance.

legislation

Section 1217 of the Social Security Act 1991 (the Act) outlines the maximum portability period for payments and their allowable absences. It provides that a person's maximum portability period for the payment of widow allowance is 13 weeks for any temporary absence.
Section 1218C of the Act outlines the circumstances a person's portability period can be extended:
(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 hospitalization of the person or a family member of the person;
(d)The death of a family member of the person;
(e)The person’s involvement in custody proceedings in the country in which the person is located;
(f)A legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g)Robbery or serious crime committed against the person or a family member of the person;
(h)A natural disaster in the country in which the person is located;
(i)Political or social unrest in the country in which the person is located;
(j)Industrial action in the country in which the person is located;
(k)A war 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.
(3)If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purpose of this Part, is the extended period.

Issues

Should Mrs Divanis should be paid widow allowance after more than 13 weeks absence from Australia?

consideration of the evidence and findings

I had before me documents lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 (“the T documents”), which I took into evidence.
Mrs Divanis said she was told at Centrelink, and by the Centrelink letter dated 22 April 2009, that cancelled payments could be returned provided she had a good reason for remaining out of the country. The letter states:
If you return to Australia you may need to make a new claim for any payments that were cancelled while you were away.
In my view, it is clear that the letter advised Mrs Divanis that her widow allowance would be would be stopped on 2 August 2009, and if she returned to Australia after that date a new claim would have to be made. The letter does not state that the amounts that were not paid will be repaid to her if she reclaimed widow allowance.
Mrs Divanis gave evidence with the occasional assistance of a Greek interpreter. Her position was that had she remained in Australia there would have been no question of her being entitled to the payment; in that she is correct. The Act continues that benefit for 13 weeks should a beneficiary travel outside of Australia.
The legislation is clear: widow’s allowance is only payable for 13 weeks while a person is overseas. Section 1218C sets out where the limited circumstances where that portability may be extended.
Mrs Divanis submitted that she should be paid for the period 2 August 2009 to 26 October 2009 because she had gone to Greece on advice of her doctor. She said that the daily routine of living with her daughter and grandchildren was all ”getting too much”. In a letter to Centrelink dated 26 March 2009 her GP, Dr Missiakos, wrote:
Mrs Divanis... has stress and anxiety at present. I advised her to spend time overseas as Penny is born in Greece with all her family there. Penny has sick brother in Greece and she feels that at his time of medical need she will spend time with her sick brother to help him.
She needs a break from her hard life and her depression would benefit from a Holiday. Please allow Penny to have a holiday to help her depression and help her sick brother...
Mrs Divanis had also previously submitted that her portability period should be extended because she went to visit her sick brother. There was no evidence before me as to the severity of her brother's illness. She is recorded as having told the Social Security Appeals Tribunal that her brother was ill, but ”not that bad”. Her brother’s health problems began well before Mrs Divanis departed Australia. In her evidence she said that she only spent three days with her brother in Athens where he lives, but that most of the time she spent in the small town near where she had been born. Her brother visited her there for a total of less than two weeks and she visited him again in Athens for another short period. Otherwise she remained in the small town in a modest holiday house which had been her father’s. She spent her time relaxing and socialising with cousins and other relatives.
Mrs Divanis also submitted that she was unable to return to Australia earlier because, although she had a specified date on her return ticket, she delayed her return trip by about 20 days because she was stressed about getting on the plane home and had ”some kind of phobia”. She did not consult a doctor at the time, notwithstanding that she was panic-stricken and was shaking. The hearing appears to be the first time Mrs Divanis had mentioned this as a reason for remaining away. She said this was her only reason for delaying her return.
On her return, and in support of her claim for back payments, Dr Missiakos wrote a letter dated 5 January 2010. There he wrote:
She has chronic heart problems going back 18 years. She has severe depression requiring regular medical care and medications, anti depressants and seen specialist psychiatrist as well in the end of 2008. … Mrs Divanis was advised to visit her brother in Greece. … With her brother Mrs Divanis forgot about her problems (depression). Mrs Divanis stayed in Greece for the purpose of recovering from her depression. She has noticed a marked improvement in her health and well being since the Holiday.
For the purposes of the hearing Dr Missiakos provided another letter dated 28 September 2010, where he largely repeated what he had written in his previous letters.
I was referred to the Guide to Social Security Law at 7.1.2.10 which discusses the discretion to extend the limited portability period:
Discretion to extend the limited portability period
…
A discretionary extension must be for a definite period, during which time the recipient's situation is expected to change and enable return to Australia. Should a person be unable to return to Australia on expiry of the new allowable portability period, the case should be assessed and a further definite period may be allowed if appropriate.
…
It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia. It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia at the first available opportunity (e.g. where an extension is allowed due to illness, the recipient is required to return immediately their health allows this) -extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia.
Reasons for allowing a discretionary extension
…
The event preventing the person's return to Australia must be extreme or of an emergency nature and must have occurred or begun during the allowable portability period.
Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
Essentially Mrs Divanis’ claim is on three bases: that she travelled overseas on medical advice; she went to visit her ill brother; and she was prevented from returning earlier because she had developed a phobia about getting on the plane to come home. I do not consider that any of these enlivens the discretionary provisions. Portability of a person's payments can only be extended if an event occurs or began during the period of absence.
Mrs Divanis was suffering long standing depression. In the report of 21 August 2008, Dr Subhas notes that Mrs Divanis has been treated for major depression for about 15 years. In a letter dated 5 January 2010 Dr Missiakos states that "she has chronic health problems going back 18 years". Mrs Divanis’ health problems existed before she went overseas. The fact that Mrs Divanis' doctor considered that her depression would benefit from a holiday is not a circumstance which would properly allow the discretion under s 1218C to be exercised. In any event s 1218C(2) applies because the condition did not arise during her absence.
Similarly, her brother’s ill health was well known before her travel and would therefore be precluded by s 1218C(2)(a). In any event, he does not appear to have had a ‘serious illness’ given his capacity for travel: per s 1218C(1)(b).
Somewhat more problematic was her reference to having developed a phobia about the flight home, and thereby extended her travel by about 20 days. Was this a ‘serious illness’ to which s 1218C(1)(b) might apply? While ‘serious illness’ is not defined, there is some authority that the expression implies some specific unexpected event which has a limited timeframe, that its effect would be over in a short period of time and the person involved would be able to return to Australia: see Re Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194; Re Manolev and Secretary, Department of Family and Community Services (2005) 88 ALD 794.
In Manolev the Tribunal considered the applicant’s phobia of flying as a ground of discretion under 1218C. That Tribunal came to the conclusion that though the phobia may very well be a serious illness, the intention of the Act in “granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would be over in a short period of time and the person involved would be able to return to Australia.” In relation to the applicant’s phobia the Tribunal found “that Mr Manolev’s illnesses [were] rather vague without specific onset and without a specific end point” Furthermore, as Mr Manolev had provided very little explanation as to the illness’s origin and inconsistent effect, the Tribunal found “that [his] illnesses [were] not of the serious nature implied in the legislation and the Explanatory Memorandum of that legislation [emphasis added].” As I observed above, the hearing was the first time Mrs Divanis’ phobia had been mentioned, and it was unsupported by medical evidence as to the degree to which the episode may have been debilitating, such that it might be described as a ‘serious illness’ in accordance with s 1218C(1)(b).
Even if this was not the case, and I was to accept Mrs Divanis’ uncorroborated account, there is a serious flaw in Mrs Divanis’ contention about her inability to return home as she had scheduled. In Re Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989, the Tribunal, in referring to s 1218C(2) observed that the event referred to in subsection (1) must occur or begin during a period of absence. The Tribunal there found, and I agree, that it must follow that in order for the portability period to be extended beyond the 13 week period, the event must have occurred during the portability period. If account was to be taken of an event that occurred outside the portability period, the portability period could not be extended within the meaning of s 1218C(2) for it would have already expired.
I find that there are no grounds for the exercise of the discretion in s 1218C of the Act in respect of Mrs Divanis' absence from Australia, as no event contemplated by that section occurred or began during Mrs Divanis' absence that prevented her from returning to Australia within 13 weeks.

decision

The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

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

Date of Hearing:  17 August 2010
Date of Decision:  24 August 2010
Appearance for the Applicant:
Solicitor for the Respondent:             Ms R Prasad, Centrelink Legal Services