GEMOVIC and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 888

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 888

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2708

GENERAL ADMINISTRATIVE DIVISION		)
Re		NADA GEMOVIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date12 November 2010

PlaceSydney

Decision The decision under review is set aside and in substitution it is decided that pursuant to section 1218C of the Social Security Act 1991 Ms Gemovic was unable to return to Australia because of a serious illness and therefore the portability of her age pension should be extended to 2 April 2010.

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

Dr I Alexander
  Member

CATCHWORDS

SOCIAL SECURITY – pensions – age pension – person continuously absent from Australia throughout a period of more than 26 weeks – discretion to extend portability period – whether applicant unable to return to Australia due to serious illness and/or hospitalisation – decision under review set aside

Social Security Act 1999 ss 1220A, 1218C

REASONS FOR DECISION

12 November 2010 Dr I Alexander, Member

INTRODUCTION

1.      In these proceedings Ms Gemovic seeks review of the decision of the Social Security Appeals Tribunal (SSAT) dated 18 June 2010 to affirm a decision made by Centrelink to pay her a reduced rate of age pension from 27 November 2009 to 2 April 2010 as she had been absent from Australia for more than 26 weeks.

2.      Ms Gemovic was unassisted at the hearing and represented herself.

BACKGROUND

3.      Ms Gemovic is a 72 year old woman of Serbian descent who became an Australian resident in January 1986. She was granted an age pension in September 2000.

4.      On 29 May 2009 Ms Gemovic advised Centrelink that she was travelling to Serbia on that day and planned to return on 29 July 2009.

5.      On 29 May 2009 Centrelink sent Ms Gemovic a letter advising her that if she stayed out of Australia longer than planned her Age Pension “may be reduced or stopped”.

6.      The letter was sent to a post office box in Neutral Bay and it is not clear whether Ms Gemovic ever received this letter as she left for Serbia on the same day.

7.      On 19 August 2009, while still in Serbia, Ms Gemovic was admitted to hospital. She was discharged on 21 August 2009 following a blood transfusion.

8.      On 27 November 2009 Centrelink reduced the rate of Ms Gemovic’s age pension because she had been overseas for more than 26 weeks. Centrelink had calculated Ms Gemovic’s “residence factor” as 0.53 and accordingly reduced her pension rate to 53% of her full rate entitlement prior to leaving Australia.

9.      Ms Gemovic returned to Australia on 3 April 2010.

ISSUES

10. Section 1220A of the Social Security Act 1991 (the Act) states that a person’s rate of pension is to be calculated using the Pension Portability Rate Calculator at the end of section 1221 if the person has been continuously absent from Australia throughout a period of more than 26 weeks.

11.     The relevant rate of pension calculated at 53% is not disputed.

12. Section 1218C(1) of the Act states that the Secretary may extend a person’s portability period if the Secretary is satisfied that the person is “unable to return to Australia” because of certain events which include “a serious illness of the person …” or the “hospitalisation of the person …”.

13. Section 1218C(2) states that the Secretary must not extend a person’s portability period under subsection (1) unless “the event occurred or began during the period of absence”.

14.     There is no dispute that Ms Gemovic’s illness and hospitalisation occurred during her period of absence. However, in the Statement of Facts and Contentions the Secretary submitted that Ms Gemovic “did not have a serious illness which prevented her from returning to Australia within 26 weeks of her departure”.

15.     At the hearing, after further consideration of the documentary medical evidence the respondent conceded that Ms Gemovic’s illness was sufficiently serious to extend the portability period to 9 January 2010.

16.     The respondent, however, contended that there was insufficient medical evidence to establish with reasonable certainty that Ms Gemovic was prevented from travelling from 9 January 2010 until 2 April 2010 and that therefore her age pension should have been reduced by 47% during this period.

17. Therefore the only issue in dispute is whether pursuant to section 1218C the Tribunal is satisfied that Ms Gemovic was unable to return to Australia between 9 January 2010 and 2 April 2010 because of “serious illness” and/or “hospitalisation”.

DOCUMENTARY EVIDENCE

18.     A translated copy of a discharge letter confirmed that Ms Gemovic was admitted to Sremska Mitrovica General Hospital on 19 August 2009 and discharged on 21 August 2009.

19.     Ms Gemovic was admitted “due to general weakness and exhaustion” and it was noted that her problems had started two months before her admission, that is, during her period of absence from Australia.

20.     After presenting at a general practice Ms Gemovic was found to be suffering from anaemia and she was referred to the hospital where her anaemia was considered sufficiently severe to require a blood transfusion with two units of packed red blood cells.

21.     Endoscopy revealed a hiatus hernia with “deep ulceration” on the back wall of the stomach and several erosions in the prepyloric antrum and the pylorus.

22.     Ms Gemovic was discharged on a special diet, oral iron, folic acid and Omeprazole and was to be followed up in the Gastroenterology clinic in one month.

23.     A translated Specialist Doctor’s report dated 9 November 2009 indicated that Ms Gemovic was required for a check-up in the Gastroenterology clinic in two months and it was “not recommended for her to travel until the next check-up and until her condition becomes stabilised”.

MS GEMOVIC’S EVIDENCE

24.     I note that Ms Gemovic had some difficulty with English, but I am satisfied that she understood the proceedings and that she was able to present her evidence.

25.     I also note that her recollection of the details of her medical treatment, particularly with regard to dates and consultations with various medical practitioners, was somewhat impaired.

26.     Nevertheless, she asserted that the timing of her return to Australia was supported by her treating doctors. Also, she indicated that she had been anxious to return home to be with her daughter.

27.     Ms Gemovic stated that she understood the importance of notifying Centrelink with respect to her illness and had sent relevant documents to both Centrelink and Housing NSW.

28.     Ms Gemovic expressed surprise that Centrelink did not have a record of receipt of the documents, particularly as her daughter had contacted Centrelink at the relevant time and had been told that the documents had been received.

29.     I note that a letter dated 25 January 2010 from Housing NSW acknowledged recent correspondence from Ms Gemovic indicating that while visiting family in Serbia she became sick and was hospitalised.

30.     When Ms Gemovic was asked by the Tribunal why there were no further medical documents after 9 November 2009 she indicated that after having sent these documents to Centrelink she did not realise that further documents would be required.

31.     I note that in September 2010 Ms Gemovic was referred to Royal North Shore Hospital with a history of increasing shortness of breath on exertion. She was again found to be anaemic and was transfused with two units of packed red blood cells.

CONSIDERATION

32.     In my view the medical evidence clearly indicated that, while in Serbia, Ms Gemovic was diagnosed with an illness that can be satisfactorily described as a “serious illness” within the meaning of the Act. It would appear that in the course of her dealings with Centrelink the serious nature of her condition has been underestimated.

33.     Ms Gemovic was a 71 year old woman who had significant symptoms, required a blood transfusion and was found to have ulceration in her stomach and duodenum which presumably, as a result of bleeding, caused her anaemia.

34.     It was also clear from the documents that a period of treatment and stabilisation was required before it was safe for Ms Gemovic to travel back to Australia.

35.     Although the documents do not specify the exact period of treatment required for safe travel I accept Ms Gemovic’s evidence that she did not return to Australia until her medical advisors indicated to her that it was safe to travel.

36.     Accordingly, I am satisfied that Ms Gemovic was unable to return to Australia because of a serious illness that occurred during her period of absence from Australia.

37.     This means that the portability period for payment of her age pension should be extended until 2 April 2010.

DECISION

38. The decision under review is set aside and in substitution it is decided that pursuant to section 1218C of the Act Ms Gemovic was unable to return to Australia because of a serious illness and therefore the portability of her age pension should be extended to 2 April 2010.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed:         .............[sgd]...................................................................
  Associate

Date of Hearing  4 November 2010
Date of Decision  12 November 2010
Appearance for the Applicant        Self-represented
Appearance for the Respondent    Ms R Prasad