Gowany and Secretary, Department of Social Services (Social services second review)
[2015] AATA 633
•27 August 2015
Gowany and Secretary, Department of Social Services (Social services second review) [2015] AATA 633 (27 August 2015)
Division
General Division
File Number(s)
2014/4119
2014/4120
Re
Hany Gowany
Magda Gowany
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 27 August 2015 Place Sydney The decision under review is set aside and the Tribunal decides instead that the discretion in s 1218C should be exercised in Mr and Mrs Gowany’s favour so that their maximum portability periods are extended to the date of their return to Australia on 12 July 2013.
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Senior Member J F Toohey
CATCHWORDS – social security – disability support pension – carer payment – portability period – whether payments should have been suspended after six weeks – discretion to extend – whether illness of family member was an event – whether applicants were unable to return to Australia by reason of event – decision under review set aside
Legislation
Social Security Act 1991 ss 1217, 1218C
Cases
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29
REASONS FOR DECISION
Senior Member J F Toohey
27 August 2015
Background
Mr Hany Gowany and Mrs Magda Gowany have received carer payment and a disability support pension respectively since 1997.
Like many social security payments, carer payment and disability support pension are subject to maximum portability periods, meaning that payment will ordinarily be suspended, and may ultimately be cancelled, if a recipient who has gone overseas remains outside Australia after that time. In some circumstances, the portability period may be extended.
Mr and Mrs Gowany went to Egypt on 12 April 2013 and returned 13 weeks later on 12 July 2013. Their purpose was to visit Mrs Gowany’s elderly mother who was seriously unwell and had asked her family to join her. As it happened, she died while Mr and Mrs Gowany were en route to Egypt.
On previous trips, the maximum portability period for Mr and Mrs Gowany’s payments was 13 weeks, and they timed their return accordingly. They did not realise, when making their arrangements in April 2013, that the maximum portability period had been reduced to six weeks from 1 January 2013. As set out below, they learned of the change when speaking to a Centrelink officer shortly before they left.
On 24 May 2013, when they had not returned to Australia, Mr and Mrs Gowany’s payments were suspended. They seek review of a decision by Centrelink not to extend their maximum portability periods.
For convenience I will refer to the Secretary in this decision as “Centrelink”.
Relevant legislation
The Social Security Act 1991 (the Act) contains provisions concerning the maximum portability periods that apply to various payments.
Section 1217 sets out in table form the maximum portability periods for various payments. In some circumstances, none of which applies to Mr or Mrs Gowany, the portability period may be unlimited. From 1 January 2013, the maximum portability period for carer payment and disability support pension was six weeks.
Section 1218C provides that the Secretary (and so the Tribunal) may extend a person’s portability period if satisfied that he or she 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;
(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.A portability period may not be extended unless the event occurred or began during the period of absence: s 1218C(2).
The issue
I have to decide whether Mr and Mrs Gowany were unable to return to Australia after six weeks by reason of the occurrence during their absence of any of the events in s 1218C and, if so, whether the discretion to extend their portability periods should be exercised in their favour.
Mr and Mrs Gowany’s trip in April 2013
It is not in dispute that Mr and Mrs Gowany booked to leave Australia on 12 April 2013 and return on 12 July 2013 in the belief that their maximum portability period was 13 weeks as it had been on previous occasions they had gone overseas.
On 10 April 2013, Mr and Mrs Gowany went into their Centrelink office. They spoke to an officer and advised they would be travelling overseas and gave the dates of their departure and return. They were advised that the maximum portability period was now six weeks and that their payments would be suspended on 24 May 2013 if they were still overseas. They told the officer their reasons for going overseas and asked if the portability periods could be extended. They say they were told that, if they could provide proof of Mrs Gowany’s mother’s illness from her doctor, an extension would be considered.
Centrelink records show that Mrs Gowany spoke to Centrelink by telephone on 11 April 2013 and advised her mother was in intensive care, and she would “obtain medical evidence from the hospital and fax/email to CIS for consideration of extending payment for more than 6 weeks”. Mr and Mrs Gowany arranged for the hospital where her mother was being treated to fax a medical certificate to Centrelink the same day.
A copy of a letter dated 10 April 2013 addressed to Centrelink from Dr Ashraf Morad at Triumph Hospital, Heliopolis, is before the Tribunal. (The date may be explained by the time difference between Egypt and Australia). It certifies that Mrs Gowany’s mother had been admitted 12 days previously and her condition had deteriorated, and she was asking for her family, and especially her daughters, to be with her.
On 11 April 2013, Centrelink sent letters to Mr and Mrs Gowany advising that, after they had been overseas for 42 days, they could no longer be paid their respective payments. By the time the letters arrived at Mr and Mrs Gowany’s home, they had left for Egypt. They say they left understanding that the extension would be approved once they had provided the necessary medical report. I accept they honestly believed that is what they had been told, but the Centrelink record shows only that “consideration” would be given to an extension. I am satisfied that the Centrelink record reflects Mr and Mrs Gowany’s conversation with the Centrelink officer.
For reasons which are not clear, Centrelink does not appear to have given consideration to extending Mr and Mrs Gowany’s maximum portability periods once the medical report was received. It appears that it was not until after they returned to Australia that their request was considered and was refused, but nothing turns on this.
Mrs Gowany’s mother died before she and Mr Gowany arrived in Egypt. They do not rely on her death as ground for extending their maximum portability periods. Nor do they rely on a heart condition that Mr Gowany developed while he was in Egypt and for which he required treatment.
As set out below, shortly after Mr and Mrs Gowany arrived in Egypt, his sister was diagnosed with a serious illness from which she ultimately died in May this year. They say they were unable to return to Australia until they did because of her illness. They say her serious illness was an event within the meaning of s 1218C, in particular s 1218C(1)(b), and they were unable to return to Australia until they did for that reason.
I found Mr and Mrs Gowany to be honest and forthright, and I accept their account of events before they left Australia and while they were overseas.
Was there a serious illness?
Mr and Mrs Gowany gave evidence that, when they arrived in Egypt, Ms Zekri was being treated for an apparent ear infection. When her condition was not improving and her mobility was being affected, they became concerned and took her to another doctor who referred her to a specialist. She was found to have hydrocephaly and needed urgent surgery to insert a shunt. In the course of that investigation and treatment, she was found to have a brain tumour for which she had to undergo radiotherapy for six weeks.
Mr Gowany’s sister’s first and family names appear in various forms and spellings in medical documents. To avoid confusion, I will refer to her as Ms Zekri. The medical reports show the following history around the time that Mr and Mrs Gowany arrived in Egypt.
A report of ultrasonography of Ms Zekri’s neck arteries on 31 March 2013 appears to show nothing of significance. However, a report of a CT scan dated 25 April 2013 shows:
Ill-defined heterogeneous cerebellar lesion causing moderate supratentorial hydrocephalus, for further assessment by MRI.
Translations of medical reports dated 2 May and 3 May 2013 show that Ms Zekri was admitted to hospital on 30 April 2013 for surgery to “install a valve in the brain”. She was discharged on 3 May 2013.
A translation of a medical report dated 4 May 2013 shows that Ms Zekri was:
… suffering from an increase in brain pressure caused by hydrocephalus after a malignant tumour in the cerebellum that caused sever (sic) deterioration in [illegible] and movement. She was urgently admitted to the hospital to install a [illegible] valve to discharge the [illegible] fluid from the brain ventricles to the peritoneal cavity. She needs an urgent surgical intervention to remove [illegible] and analyse it.
A report dated 8 May 2013 from Professor Dr Yasser Abdel-Azim to Professor Dr Adel Hussein details the findings of an MRI scan following the surgery. It refers to a “tumorous mass lesion of moderate size” which was “highly suggestive of an ependymoma”.
A further undated report shows that Ms Zekri was:
… being treated at the Radiation Treatment Therapy Division and she needs treatment for (six weeks “illegible word” along with Radiation and planning). Treatment is conducted under the supervision of Doctor Muhsin Soum.
There is no suggestion that the medical reports are not genuine. There is no argument that Ms Zekri was suffering a serious illness. A copy of her death registration certifying her death on 12 May 2015 is before the Tribunal. While it does not state the cause of death, I accept it was related to her illness in 2013.
Was Ms Zekri’s serious illness an “event” that occurred during Mr and Mrs Gowany’s absence?
Centrelink submits that Ms Zekri’s illness was not an “event” that occurred during Mr and Mrs Gowany’s absence for the purpose of s 1218C(1). It is submitted that Ms Zekri was already being treated for the illness before Mr and Mrs Gowany left Australia.
I do not think that argument can be sustained. When Mr and Mrs Gowany arrived in Egypt, Ms Zekri was being treated for what was believed to be a middle ear infection. Nothing in the medical reports suggests anything more serious. It was not until Ms Zekri was not improving and Mr and Mrs Gowany took her to a new doctor, and from there to a specialist, that the cause was investigated and discovered. While it appears probable that Ms Zekri’s tumour existed before Mr and Mrs Gowany left Australia, the medical evidence indicates that it was not diagnosed, and the need for urgent treatment was not identified, until after they arrived in Egypt.
It is apparent from the medical reports that Ms Zekri required urgent treatment and that surgery was performed within a matter of days of the tumour being diagnosed around 4 May 2013. Radiotherapy commenced a short time later. Mr and Mrs Gowany could not recall the date, and the undated medical report referred to above does not give the date, but I accept their evidence that Ms Zekri’s final treatment was on 7 July 2013, meaning radiotherapy must have commenced around the last week of May.
I am satisfied that the diagnosis and treatment of Ms Zekri’s serious illness was an event that occurred during Mr and Mrs Gowany’s absence for the purpose of s 1218C(1).
Were Mr and Mrs Gowany unable to return because of his sister’s illness?
Mr Gowany and Mrs Gowany gave evidence that Ms Zekri had to undergo radiotherapy five days a week for six weeks. They paid for her treatment. Mr Gowany gave evidence, which I accept, that it was a one and a half hour trip each way to the hospital by public transport and so he took her by taxi to and from the hospital each day. He and Mrs Gowany would then wait at home with her until her daughter arrived.
Mr Gowany says his sister was a widow and there was no one else in the family who could accompany her. During one week, when he was himself unwell with heart problems, her daughter took time off work to accompany Ms Zekri but that was the maximum time she was allowed to take off.
Asked what Ms Zekri would have done had Mr and Mrs Gowany not been there at the time to help her, Mr Gowany said she would have had to “figure something out”. I understand him to mean only the obvious and not that there was any real alternative to staying and supporting his sister.
Mr and Mrs Gowany gave evidence that, had they known their maximum portability period was six weeks, they would have returned to Australia after six weeks were it not for his sister’s illness. They say that, Mrs Gowany’s mother having died before they even arrived, there was no reason to stay beyond six weeks on her account. However, Mr Gowany said, Ms Zekri’s situation was deteriorating, then he started accompanying her to radiotherapy each day, and he could not just leave her.
In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29, the Full Federal Court considered the question of the power that can be exercised in respect of a period of absence after a person has returned to Australia and departed again. Gray J observed at [29] that s 1218(C) is a remedial provision, and the principle that it should be construed liberally was “indisputable”. Considering the question whether the applicant was “unable to return” because of his mother’s illness, he said, at [32]:
It is easy to accept the proposition that s 1218C(1) does not require that the event make it impossible for a person to return to Australia. Practical inability to return, owing to the circumstances created by the event, will be sufficient.
Flick J said, at [100]:
Both the Secretary and Mr Mouratidis were … in agreement that an inability to return was not confined to a physical inability; the statutory expression, it was jointly accepted, embraced a practical inability. Such a practical inability may arise by reason of a myriad of circumstances, extending from financial circumstances to the need to provide emotional comfort to a “family member” who has been involved in a serious accident or illness. The matters to be taken into account would depend (at least in part) upon the “event” being relied upon.
Given the seriousness of Ms Zekri’s illness and her need for urgent treatment including daily radiotherapy for several weeks, I am satisfied that Mr Gowany was unable to return to Australia until he did because of his sister’s serious illness. The fact that the end of her treatment coincided with the date he and Mrs Gowany originally planned to return to Australia does not detract from this conclusion.
Although there is no medical evidence to this effect, I accept Mrs Gowany’s evidence that she could not return to Australia by herself because she was dependent on Mr Gowany as her carer.
Conclusion
Mr and Mrs Gowany say, and I accept, that they were under the impression their portability period had been extended. Their unchallenged evidence was that, had they known their portability period was limited to six weeks, they would have returned to Australia within six weeks of departing were it not for Ms Zekri’s illness. I find her serious illness was an event within the meaning of s 1218C. I am satisfied, in all the circumstances, that Mr and Mrs Gowany were unable to return to Australia until they did because of that event.
The decision under review is set aside and the Tribunal decides instead that the discretion in s 1218C should be exercised in Mr and Mrs Gowany’s favour so that their maximum portability periods are extended to the date of their return to Australia on 12 July 2013.
43. I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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AssociateDated 27 August 2015
Date(s) of hearing
27 July 2015
Representative for the Applicants
Self-represented
Representative for the Respondent
Ms Biljana Salaji, Advocate
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