Ekaterina Ramos and Secretary, Department of Social Services

[2014] AATA 71

[2014] AATA  71

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4218
Re	Ekaterina Ramos
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	8 January 2014
Date of written reasons	14 February 2014
Place	Sydney

The Decision of the Social Security Appeals Tribunal dated 31 July 2013 is affirmed.

.....................[SGD]...................................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – disability support pension – portability period – discretionary power to determine portability period

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 37

Social Security Act 1991 (Cth) – ss 1217, 1218AA, 1218AAA, 1218C
Social Security (International Agreements) Act 1999 (Cth) – Schedule 2, Art 2(1)(a)(i); Schedule 11 Art 6(1)

CASES

Secretary, the Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member A K Britton

14 February 2014

EDITED EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. Australian citizen, Ms Ekaterina Ramos, challenges a decision made by the respondent Secretary and affirmed by the Social Security Appeals Tribunal to cease paying her disability support pension (DSP) from 9 May 2013. Ms Ramos migrated to Australia from Greece when she was about one year of age and has spent most of her life in Australia. Since September 2006 she has spent significant periods of time outside Australia and on 17 July 2012 left Australia and to date has not returned.

2. Under the Social Security Act 1991 (Cth) (the Act), DSP is only payable to a person who is an “Australian resident” as defined by that Act. During the relevant period DSP was generally not payable if the recipient has been continuously absent from Australia for thirteen weeks or more. The period of absence from Australia in which DSP is still payable to a recipient is called a “portability period”. The Act confers a discretion to extend the portability period in certain circumstances. Ms Ramos contends that the discretionary power should be exercised in her case because she now suffers from a severe impairment and her mother is seriously ill. Further she argues that the decision to cease paying her DSP should be set aside because she was told by Centrelink that by the operation of various international agreements she would continue to be eligible to receive DSP, notwithstanding her absence from Australia.

3. Pursuant to s 1217 of the Act even if Ms Ramos was taken to “reside [in Australia]” as at the date payment for DSP ceased, she would be ineligible to receive DSP because at that point in time she had been absent from Australia in excess of the maximum DSP portability period. As stated, a number of exceptions apply. I will consider those that may be relevant.

   Can the portability period be extended under s 1218AA?

4. Section 1218AA(1) of the Act provides that the decision-maker can extend the portability period for an indefinite period where, among other things, the person’s absence is, or will be, permanent and they are “terminally ill”. While there can be no argument that Ms Ramos suffers from a number of serious health problems, she is not terminally ill. By this I mean suffering an illness causing the end of life. Therefore the power to extend the portability period conferred by s 1218AA of the Act cannot be exercised.

   Can the portability period be extended under s 1218AAA?

5. The portability period may be extended under s1218AAA of the Act if, among other things, Ms Ramos suffers from a “severe impairment” as defined by the Act. The Act gives the term, “severe impairment” a different meaning to that generally understood by that term and defines it to mean an impairment of at least 20 points as assessed under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

6. In short, to qualify as a severe impairment, the impairment must be permanent, that is, “fully treated, diagnosed and stabilised” and, in addition, awarded a rating of at least 20 points under a single Impairment Table. As I understand it, Ms Ramos suffers from a number of medical conditions. It would appear that in mid-2012 the most serious were a fibroid and a lower back condition.

7. Dealing first with the fibroid condition, I have no hesitation in accepting Ms Ramos’ claim that the condition is very serious and has caused her significant pain and practical difficulties.

8. However that impairment cannot be awarded a rating under the relevant Table because on Ms Ramos’ own evidence the condition to date has not been fully treated and stabilised.

9. In respect of the lower back condition, while the available evidence is limited, I accept for current purposes that the condition — which according to Ms Ramos is longstanding and one of the conditions that led to the original decision to grant her claim for DSP — was fully diagnosed, treated and stabilised. Therefore a rating can be awarded under the relevant table, namely Table 4: Spinal function.

10. There are a number of practical difficulties with making an assessment on the information available — not least that as at 2012 no assessment of Ms Ramos had been undertaken as against Table 4 and there was no current job capacity assessment. Leaving those difficulties to one side, for the back condition to qualify as a severe impairment, Table 4 requires that the person be unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck without moving their trunk; or

    (c)bend forward to pick up a light object from a desk, or, a table or

    (d)remain seated for at least 10 minutes.

11. On what is before me there is no evidence to suggest that Ms Ramos is unable to perform any of those tasks. Therefore her condition could not be said to be a severe impairment for the purposes of the Tables. I emphasise that this does not mean that Ms Ramos does not have a back condition which causes her some functional incapacity and considerable distress and pain, merely that it does not meet the tough test imposed by the Tables to qualify for classification as a severe impairment.

12. As Ms Ramos does not have a severe impairment the power conferred by s 1218AAA to extend the portability period cannot be exercised.

    Can the portability period be extended under s 1218C?

13. I will now consider whether the power to extend the portability period under s 1218C can be exercised.

14. As noted, Ms Ramos travelled to Greece on 17 July 2012. It follows that the portability period applicable at that time ended on or around 16 October 2012. Section 1218C confers a power to extend the portability period if the Secretary or the decision-maker is satisfied the person is unable to return to Australia because of any of the following events: a serious accident involving the person or a family member or the person; a serious illness of the person or a family member of the person; the hospitalisation of the person or a family member; the death of a family member.

15. For the portability period to be extended under section 1218C of the Act, it is necessary that the relevant event occur during the original portability period: Secretary, the Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29. The question therefore posed is whether any of the events listed in section 1218C of the Act occurred during the 13-week period following Ms Ramos’ departure from Australia in July 2012.

16. Ms Ramos stated in evidence: her mother suffers from a number of serious health problems, or had been suffering from a number of serious health problems throughout  2012; and, prior to her departure from Australia in 2012 her mother was suffering from pneumonia and possibly dementia; and had been hospitalised. I have no doubt that one of the reasons that Ms Ramos decided to stay in Greece for an extended period of time was so that, as a devoted daughter, she might assist and care for her mother. However, section 1218C can only be applied if the illness, event or accident — in this case, Ms Ramos’s mother’s illness and hospitalisation — occurred during the portability period. As her mother’s illness occurred prior to departure, the power to extend the portability period conferred by s 1218C of the Act cannot be exercised.

    Can the decision be set aside because of inaccurate information given by Centrelink to Ms Ramos?

17. The main complaint I understand Ms Ramos to have is that she was given inaccurate information by Centrelink prior to leaving Australia about her eligibility for DSP if she were to live in Greece. It is accepted that the agreement between the Government of Australia and the Government of the Hellenic Republic on Social Security (the Greek Agreement) does not extend to DSP (See Article 2(1)(a)(i) of Schedule 22 of the Social Security (International Agreements) Act 1999 (Cth)).

18. Ms Ramos claims however that she was given inaccurate information about the interrelationship between the Greek Agreement and the Agreement between Australia and the Republic of Cyprus on Social Security (the Cypriot Agreement) and led to believe that she would be eligible to receive DSP if she were to live in Greece and periodically, or at least every 13 weeks, visit Cyprus. File notes within the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) are broadly consistent with that claim (see pages 233, 238, 239, 240). (See also letter from Centrelink to Ms Ramos, 22 August 2011).

19. I accept that Ms Ramos was probably given inaccurate information about the operation of the Cypriot Agreement and its interrelationship with the Greek Agreement. Nonetheless, under the terms of the former since leaving Australia in 2012 she did not meet the “residence requirement” imposed by that Agreement and therefore had no entitlement to DSP under that agreement (See Article 6(1) of Schedule 11 of the Social Security (International Agreements) Act).

    Conclusion

20. Ms Ramos was ineligible to receive DSP at the time the decision was made to cancel her DSP. As I discussed with Ms Ramos today in this hearing I understand she will be dissatisfied that this Tribunal does not have power to order a remedy in the event of inaccurate information being given by a government agency.

21. Ms Ramos has raised a number of issues about the conduct of Centrelink officers. If she wishes to make a complaint about that conduct she may take it up with the Commonwealth Ombudsman.

22. For the reasons that I have given I am obliged to affirm the decision under review, that is, that the decision to cancel the payment of DSP was the correct decision.

23. Ms Ramos, thank you for your patience in sitting through these reasons for decision and, Ms Martini, thank you for your assistance in this matter.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

.....................[SGD]...................................................

Associate

Dated 14 February 2014

Date(s) of hearing	8 January 2013
Applicant	In person
Solicitors for the Joined Party	Department of Human Services, Program Litigation and Review Branch