GEOFFREY MICHAEL DODSON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 813
•15 November 2012
[2012] AATA 813
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2890
Re
GEOFFREY MICHAEL DODSON
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms K Hogan, Member
Dr J Chaney, MemberDate 15 November 2012 Place Perth DECISION SUMMARY
The Tribunal affirms the decision under review
……(sgd) K Hogan…..
Ms K Hogan, MemberCatchwords
Social Security - Disability Support Pension - Portability Period - Extension of Portability Period for Serious Illness
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
Ms K Hogan, Member
15 November 2012
HISTORY
The applicant, a disability support pensioner, travelled from Australia to the Philippines on 28 September 2011.
The applicant had suffered from anxiety and/or depression for many years. In an email to Centrelink before his departure he said that he wished to return to the Philippines “to regain emotion and physical health” and did not wish to be limited to 13 weeks.
On 13 December 2012 the applicant asked Centrelink for an extension of time he could spend overseas without losing his pension. On 25 and 29 December 2011, the applicant sent further emails to Centrelink, in which he stated that if his request was refused he would not have money for medical treatment and, since his only social support were in the Philippines, he could “not survive” if he returned to Australia.
On 20 December 2011, Centrelink wrote to the applicant to advise him that his request had been refused since the extension cannot be granted for the purposes of undertaking medical treatment for an ongoing medical condition.
An Authorised Review Officer (“ARO”) affirmed the decision on 23 December 2011.
The ARO stated that the portability period of 13 weeks can only be extended if an extreme event or emergency situation occurs after the person leaves Australia, or if the person is unable to return to Australia for one of a number of reasons listed in section 1218AB or 1218C of the Social Security Act 1991 (“the Act”). The ARO determined that none of these exceptional circumstances applied to the applicant’s situation. The ARO noted that the applicant’s “condition had not deteriorated further such that he is prevented from returning to Australia on or before 27 December 2011”.
On 28 December 2011, Centrelink wrote to the applicant to advise that his disability support pension payments stopped from 27 December 2011, 13 weeks after he left Australia. On 4 January 2012, the applicant applied to the Tribunal for a review of the decision.
Subsequent to a Social Security Appeals Tribunal (“SSAT”) application which affirmed the decision, the applicant appealed the decision to the Administrative Appeals Tribunal (“AAT”) and the matter was settled by agreement on 14 March 2012, with an extension of portability period to 29 February 2012 under section 1218C(1)(b) of the Act.
On 29 March 2012, the applicant contacted Centrelink and requested a further extension of the portability period. On 7 May 2012, a Centrelink employee decided to reject the applicant’s request.
On 8 May 2012, the applicant requested a review of the original decision and the matter was referred to an ARO for review.
On 16 May 2012, the ARO affirmed the decision to not extend the applicant’s portability period and that his payment was correctly stopped from 1 March 2012.
On 22 May 2012, the applicant again applied to the SSAT for a review of the decision on the basis that the ARO officer made a decision based on a lack of information from his treating psychiatrist about his condition.
On 22 June 2012, the SSAT affirmed the decision of the ARO dated 16 May 2012.
The applicant appealed that decision to this Tribunal.
THE ISSUE
The issue for determination by the Tribunal is whether the applicant is entitled to Disability Support Pension at the maximum rate applicable after remaining outside of Australia in excess of 13 weeks.
EVIDENCE
The Tribunal was provided with a number of documents including:
(a) the section 37 documents;
(b) written submissions from the applicant and the respondent.
The Tribunal heard oral submissions on behalf of the parties.
CONSIDERATION OF THE ISSUES
The law applicable to this decision is contained in the Social Security Act 1991 and the Social Security (Administration) Act 1999 (“the Administration Act”).
There is no dispute that the applicant was in receipt of Disability Support Pension from 20 May 2003 and that that he departed Australia on 28 September 2011.
APPLICANT
With respect to extending the portability period under section 1218C, the applicant advanced a number of reasons as to why he was unable to return to Australia being:
·he does not have funds to travel back to Australia;
·he has a lack of support in Australia;
·his ankle is in a cast;
·his psychological condition has deteriorated and he is unable to travel.
Medical certificates and reports from Dr Enriquez (Psychiatrist) state that the applicant suffers from a Major Depressive Disorder and that she has seen the applicant 10 times since February 2011 and prescribed him anti-depressant medications. She said that the applicant has not been hospitalised in a psychiatric hospital in the Philippines, however he was admitted to hospital for bronchitis, prostatic infection and hypertension.
Dr Enriquez stated that the applicant’s condition had worsened since September 2011 as a result of stressors and that he relapsed after being questioned by Centrelink in relation to his mental and physical status which also caused him financial hardship. She stated that he suffered an accident injuring his ankle which required a plaster cast. Dr Enriquez stated the applicant’s mental state was at that time (24 May2012) unstable and his ankle condition made it risky for him to travel. Dr Enriquez stated that the applicant has no-one to help him in Australia and he is financially constrained. Dr Enriquez further said that his physical condition required attention from an orthopaedic surgeon and the applicant had to undergo physiotherapy for two or three months.
The applicant gave evidence that he could not return to Australia because of his psychological and emotional problems, his physical condition and the fact that he has no family or friends in Western Australia to assist and support him.
The applicant advised in person and in writing through email correspondence of various dates that he was not able to sit or stand without being in constant pain due to injuries in his ankles and that it was impossible for him to walk any distance without pain The applicant also advised that he has to be bathed daily by his partner and that he is suicidal.
The applicant had provided two medical certificates from Marcus Ong(Neuro-psychiatrist), the first dated 6 August 2012 and the second dated 6 September 2012.
In the report dated 6 September 2012, Dr Ong advised that he had evaluated the applicant and that he assessed him as follows:
“He is chronically depressed and is in constant pain as a consequence of injuries sustained from a motor vehicle accident way back in 1982. Because of chronic shoulder and ankle pain he requires help in doing some activities of daily (eg. Changing shirts, carrying heavy objects and walking long distances). He complains of poor sleep, had crying spells, suicidal thoughts and is ill tempered.
Diagnosis Major Depression vs Bipolar Depression/Chronic Pain Syndrome.
Maintenance medications (Clonazepam, Lamotrigine, Tramadol) and regular follow-up and psychotherapy. Furthermore, he is presently physically and psychologically distressed and unable to sustain any productive work.”
In the report of 6 September 2012 Mr Ong stated that:
“I suggested several times that he be hospitalised for further work-up and treatment. His present psychological condition, Bipolar depression is a new diagnosis and is not getting any better because he cannot sustain treatment.
Remarks: ... In his present physical and psychological state of mind he is unfit to travel”.
The applicant said that the new diagnosis of Bipolar Depression is a serious condition that has developed since he has been away from Australia.
The applicant contended that as this was a new significant condition and Mr Ong opined that he was unable to travel as a consequence of this, that the applicant should be entitled to the exercise of the discretion to extend the portability of his payments beyond 1 March 2012 under the Act.
RESPONDENT
The respondent contended that there was no evidence that the applicant was terminally ill and therefore the exemption in section 1218AA does not apply.
The respondent also contended that the applicant’s partner has not been employed in Australia; therefore the exemption in section 1218AB does not apply.
The respondent asserts that there is no provision under section 1218C to extend the portability period for lack of funds or lack of support in Australia.
In respect of the applicant’s ankle injury, the respondent contended that the injury was the result of an accident he had when he was in the Philippines in 2011. That ankle injury did not occur during the period of absence commencing in September 2011 and did not prevent his return to Australia in July 2011 or his subsequent return to the Philippines in September 2011. Furthermore, there is no evidence that his condition deteriorated during his absence or that his condition rendered him unable to return.
The respondent contended that the requirements of section 1218C(2)(a) are not satisfied and the maximum portability period cannot be extended as a result of the injury or treatment.
In respect of the applicant’s psychological condition, the Respondent contended that the medical certificate of Dr Enriquez dated 30 March 2012 does not state that the applicant was unable to travel to Australia and does not provide a period in which the condition impacted upon the applicant.
In relation to the certificate of Dr Ong dated 6 August 2012, the respondent contended that certificate does not state that the applicant was unable to travel to Australia.
In relation to the certificate of Dr Ong dated 6 September 2012, the respondent contended that whilst the certificate indicated that the applicant was unable to travel due to his psychological and physical state of mind, it is not evidence of the applicant’s inability to return at any time prior to the date of that certificate. The decision under review is whether the maximum portability period can be extended beyond 29 February 2012.
The respondent contended that the evidence regarding the applicant’s failure to return to Australia is as a consequence of a combination of factors including pre-existing psychiatric psychological conditions, a lack of support in Australia and difficulties that the applicant has experienced with his ex-wife.
The respondent further contended that the additional stressors referred to by Dr Enriquez and Dr Ong existed when the applicant left Australia on 28 September 2011 and did not eventuate during his absence.
Regarding the evidence provided to this Tribunal subsequent to the hearing of 18 September 2012, the respondent stated that the medical certificate dated 5 October 2012 did not confirm the applicant’s evidence that the injury needed stitches and did not state that the injury prevented the applicant from travelling.
The respondent further noted that there was no reference to the laceration injury to the left heel in any communications made with Centrelink by the applicant on:
·24 February 2012 (T36 doc. 65 of 150, page 185).
·29 February 2012 (T36 doc. 64 of 150, page 185),
·5 March 2012 (T36 doc. 63 of 150, page 184),
·6 March 2012 (T36 doc. 59 of 150, page 182),
·7 March 2012 (T36 doc. 58 of 150, page 181),
·13 March 2012 (T36 doc. 56 of 150, page 180),
·16 March 2012 (T36 doc. 53 of 150, page 178); or
·21 March 2012 (T36 doc. 51 of 150, page 177).
·In the notes of discussions about the applicant’s application for an extension to the portability period made by the delegate (doc. 48 of 150, page 176 and doc. 27 of 150, page 160).
·There is no reference to the injury in Dr Enriquez’s certificate issued 30 March 2012.
The respondent contended that the certificate, together with the failure of the applicant to raise the injury in any discussions or email communications with Centrelink prior to 2 May 2012 does not support a conclusion that the injury was sufficiently serious to constitute a serious illness for the purposes of section 1218C of the Social Security Act 1991.
In relation to the psychiatric condition, the respondent contended that the applicant was exhibiting serious symptomatology before his departure on 28 September 2011 and any further deterioration in his condition was not attributable to an event that occurred whilst he was overseas.
In relation to the shoulder and right ankle injury, the respondent contended that whilst the applicant may continue to experience pain from injuries to his shoulder and ankle, those injuries were sustained in a motor vehicle accident in May 2011.
Finally, the respondent noted that the applicant’s email dated 30 September 2012 in which the applicant advised ... “I do not have the finances to return with her to Australia ... my staying in the Philippines was based on recovering from 8 years of constant emotional – borderline physical abuse from ex-wife. Had my divorce been granted in the first of three hearings on 1/12/2011 I would have returned to Australia with my partner in January 2012”.
The respondent contended that the applicant's statement that he would have returned to Australia with his new partner in January 2012 had his divorce been granted in December 2011, suggests that his failure to return to Australia before the end of the portability period is the result of his interpersonal relationships and divorce proceedings, both of which commenced before his departure from Australia.
The respondent contended that the applicant provided no evidence to this Tribunal to warrant the exercise of the discretion in section 1218C of the Social Security Act 1991 in his favour as a result of a serious illness that occurred or began during his absence.
CONSIDERATION OF THE ISSUES
An extended portability period over that stated in section 1217 of the Act will only apply to disability support pensioners if the requirements of any of sections 1218AAA, 1218AA, 1218AB or 1218 of the Act are fulfilled.
There is no evidence before the Tribunal that the applicant is terminally ill therefore he does not satisfy the criteria for extended portability set out in section 1218AA of the Act.
Provision was also made for unlimited portability periods to continue for disability support pensioners in certain circumstances. Those circumstances are set out in clause 135 of Schedule 1 to the Act. These amendments apply only to those persons whose absence from Australia starts on or before 1 July 2004. The applicant was in Australia on 1 July 2004, which is the commencement date of clause 135 of Schedule 1 to the Act. The unlimited portability period provided for in clause 135 does not apply to the applicant’s circumstances.
The Tribunal considered whether the maximum portability period may be extended in accordance with section 1218C of the Act. Essentially this section allows extension of a person’s portability period if the person is unable to return to Australia because of any of a number of listed events. In the applicant’s case his claim is based upon the assertion that he is be unable to return to Australia because he or a family member suffers from a serious illness (subsection 1218C(1)(b)).
The Tribunal must also be satisfied that the event occurred or began during the period of absence (subsection 1218C(2)(a)).
The issue in relation to the applicant’s conditions, the Tribunal finds as follows:
Psychiatric Condition
It is not in dispute that the applicant has been in receipt of disability support pension for depression and anxiety since 2003. The Tribunal notes the long standing history of this condition.
Whilst Dr Ong has diagnosed Bipolar Depression in reports dated 6 August 2012 and 6 September 2012, there is no medical evidence before the Tribunal that the applicant was unable to return to Australia as a consequence of this condition prior to 1 March 2012.
The Tribunal notes that on 5 September 2011 the applicant emailed Centrelink as follows:
“…I am currently being treated for SEVERE anxiety depression: a condition I DID NOT choose to be effected by. At this point in time I am going through utter emotional hell including severe physical pain in R. Shoulder and ankle: due to a M/C accident in May of this year. I wish to return to the Philippines, so to regain emotional and physical health, and DO NOT appreciate being limited to a 13 week time period … I want this limit of 13 weeks removed; as I have NO life to return to in Australia until I am healthy again – NOT determined by a time limit ...” (T36 doc. 135 of 150 pages 227 to 228).
The Tribunal is unable to conclude that the event occurred or began during the period of absence (subsection 1218C(2)(a)).
Injury to Left Heel
The medical certificate dated 5 October 2012 confirms that the applicant suffered an injury to his left heel on 21 February 2012, but it does not state that the injury prevented him from travelling.
Shoulder and Right Ankle
The Tribunal notes that the injuries to his shoulder and ankle were sustained in a motor vehicle accident in May 2011 and therefore the portability period cannot be extended in relation to those injuries as they occurred prior to the absence from Australia that commenced on 28 September 2011.
The Tribunal is unable to conclude that any of the circumstances listed in section 1218C(1) apply in the applicant’s case.
There is no other subsection applicable to the applicant and therefore his portability period cannot be extended beyond the 13 weeks on the basis of section 1218C of the Act.
There is no other legislative provision that enables the maximum period of portability of 13 weeks to be extended. The decision to not pay the applicant disability support pension after 29 February 2012 after the applicant remained overseas for longer than 13 weeks was correct and the decision under review is affirmed.
DECISION
The Tribunal affirms the Decision under review.
I certify that the preceding 63 paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member and Dr J Chaney, Member.
(sgd) T. Freeman........................................................................
Associate
Dated 15 November 2012
Date of hearing 18 September 2012 Applicant In person (by phone)
Advocate for the Respondent Ms Ailsa Bramley
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