Grgurevic and Chief Executive, Medicare
[2025] ARTA 111
•29 January 2025
Grgurevic and Chief Executive, Medicare [2025] ARTA 111 (29 January 2025)
Applicant/s: Miso Grgurevic
Respondent: Chief Executive, Medicare
Tribunal Number: 2023/8860
Tribunal:General Member J Ross
Place:Canberra
Date:29 January 2025
Decision:The Tribunal affirms the Decision under review.
.............................[SGD]...........................................
General Member J Ross
Catchwords
MEDICARE AND OTHER HEALTH DECISIONS – determination of eligibility pursuant to s 5(1) of Continence Aids Payment Scheme 2020 (Cth) to participate in scheme – where Applicant was outside of Australia – where Applicant held ‘other health condition’ – validity of Centrelink Pensioner Concession Card – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth) s 105(a)
National Health Act 1953 (Cth) s 12
Continence Aids Payment Scheme 2020 (Cth) ss 5(1), 5(1)(a)(ii) 5(1)(a)(iii), 5(2), 6, 6(1), 6 (2)(b), 6(2)(c), 7, 8, 9, 10, 14
Social Security Act 1991 (Cth) ss 1061ZA(1), 1061ZA(3), 1061ZUB, 1061ZUB(2), 1061ZF, 1217
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Secondary Materials
Continence Aids Payment Scheme Application Guidelines and Form
Social Security Guide Version 1.324
Statement of Reasons
INTRODUCTION
The Applicant in this matter is Mr Miso Grgurevic who is receiving payments under the Continence Aids Payment Scheme 2020 (Cth),[1] which is a legislative instrument made under s 12 of the National Health Act (1953) (Cth) (CAPS).[2] The Applicant’s representative is his son, Mr Dragan Grgurevic.
[1] Continence Aids Payment Scheme 2020 (Cth), (‘CAPS’).
[2] National Health Act (1953) (Cth) s 12.
THE ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether on 1 July 2023 the Applicant was eligible under s 5(1) of CAPS to participate in the scheme.[3]
[3] CAPS (n 1) s 5(1).
BACKGROUND
On 13 August 2019, Mr Miso Grgurevic made an application for payments under CAPS. His eligibility was based on having the medical condition of ‘prostate dysplasia, detrusor instability’ and holding a valid Centrelink Pensioner Concession Card (PCC).
On 17 May 2023, Mr Miso Grgurevic departed from Australia and subsequently returned to Australia on 15 November 2023. The Applicant regularly returns to his birth town in Bosnia and Herzegovina during the Australian winter.
During this time on 27 June 2023, Mr Miso Grgurevic’s PCC ceased as he was outside Australia for longer than six weeks.
On 11 July 2023, Mr Dragan Grgurevic was sent a letter from Services Australia advising him that the Applicant was no longer eligible for a payment under the CAPS because he did not hold a valid PCC on 1 July 2023.
On 13 October 2023, Mr Dragan Grgurevic was sent another letter from Services Australia and received such letter on 20 October 2023. This letter informed him that a re-assessment of the Applicant’s eligibility had been undertaken which found that his father did not meet the required eligibility criteria for CAPS because his PCC card was not active on 1 July 2023. In that letter it was advised that if circumstances change, he may be eligible for CAPS and may re-apply.
On 19 December 2023, Mr Miso Grgurevic successfully lodged a new CAPS claim.
On 23 January 2024, Mr Miso Grgurevic was paid a CAPS payment calculated on a pro rata basis from 19 December 2023 to 30 June 2024. The gap between the two periods of eligibility when the Applicant was not paid is 1 July 2023 to 18 December 2023.
The amount of CAPS payment is determined by the financial year. The CAPS payment is one transaction unless a person elects to receive the CAPS payment in two instalments. An approved person is entitled to a CAPS payment in each subsequent financial year as long as the person’s participation has not ceased before 1 July of that financial year.
The decision under review is the decision made by the Respondent on the 13 October 2023 that determined that Mr Miso Grgurevic was not eligible on 1 July 2023 for a payment under CAPS. For the reasons set out below, the decision under review in these proceedings is affirmed.
LEGISLATIVE FRAMEWORK
Eligibility for CAPS
The CAPS eligibility criteria are set out in s 5(1) of CAPS.[4] Section 5(1)[5] requires for a person to be eligible to participate in CAPS the person must suffer from permanent and severe incontinence caused either by:
·an eligible neurological condition or
·an eligible other condition.
[4] Ibid.
[5] Ibid.
In the case of ‘an eligible other condition’,[6] s 5(1) also provides that the person must have or is eligible to have a Centrelink of Department of Veterans’ Affairs PCC. It further provides that the person must also be an Australian citizen or permanent resident.
[6] Ibid.
A person is not eligible to participate in CAPS if they fall into any of the categories in s 5(2) including at paragraph (f) the person is an ‘Australian citizen or permanent resident who have resided outside of Australia for a continuous period of three years.’[7]
[7] Ibid s 5(2).
Section 6 requires, on application, the Chief Executive Medicare to approve a person (approved person) to participate in CAPS if they meet the eligibility criteria under s 6(1)[8] and the other matters contained in s 6(2)(b)-(c),[9] are satisfied. Section 14 entitles the approved person to payment in the financial year in which the application was approved and in each subsequent financial year if the person’s participation has not ceased on a date before 1 July of that financial year.[10]
[8] Ibid s 6).
[9] Ibid s 6(2)(b)-(c).
[10] Ibid s 14.
Section 7 requires a participating person or their representative to notify the Chief Executive Medicare promptly on becoming aware that the participating person does not meet the eligibility criteria.[11] It provides an example of a person no longer meeting the eligibility criteria because the person begins receiving residential care. Section 8 requires prompt notification of change of circumstances.[12]
[11] Ibid s 7.
[12] Ibid s 8.
Section 9 allows the Chief Executive Medicare to decide, by determination in writing, that a person is not eligible to participate in the CAPS if satisfied that a participating person does not meet the eligibility criteria if notification has not been given.[13]
[13] Ibid s 9.
Section 10 provides if the Chief Executive Medicare decides that the person is not eligible to participate in CAPS participation ceases to have effect from the date specified in the determination.[14]
[14] Ibid s 10.
Qualification for pensioner concession card
Section 1061ZA(1) of the Social Security Act 1991 (Cth) (the Act) provides that subject to subsection (3), a person is qualified for a PCC if a social security pension is payable to the person for that day.[15] During the relevant period, Mr Miso Grgurevic was receiving the Age Pension; his card started on 18 October 2022 and was due to expire on 31 March 2024.
[15] Social Security Act 1991 (Cth) s 1061ZA(1), (‘Social Security Act’).
Subsection (3) relevantly provides that subsection (1) only applies to a person in relation to a day on which the person is in Australia.[16] The note to s 1061ZA states that if a person is temporarily absent from Australia, the person continues to be qualified for a PCC for a maximum period of 6 weeks. The note then directs the reader to Division 4 for further details.
[16] Ibid s 1061ZA(3).
Division 4 of the Act deals with the non-cancellation of PCCs for temporary overseas absences. Relevantly, s 1061ZUB provides the non-cancellation of PCCs for a period of 6 weeks beginning on the day the person leaves Australia.[17] The table in s 1217 of the Act states that the maximum portability period for the age pension is an ‘unlimited period’.[18]
CONSIDERATION
Was the Applicant eligible on 1 July 2023 for a payment under the CAPS?
[17] Ibid s 1061ZUB.
[18] Ibis s 1217.
Applicant’s Submissions
At the hearing, the Applicant’s son raised three contentions, as set out below.
The first contention was that on 1 July 2023, Mr Miso Grgurevic had a valid PCC with an expiry of 31 March 2024 having been provided with a new PCC on 18 October 2022. On a related point, the Applicant’s son also contended that the Continence Aids Payment Scheme Application Guidelines and Form (CAPS Guidelines) do not state that to be eligible a person is required to be in Australia on 1 July.[19] The Applicant’s son contended that the only reference in the CAPS Guidelines to being outside of Australia is if the person is currently living outside Australia and has done so for a continuous period of three years and Mr Miso Grgurevic never spends longer than 6 months outside of Australia.
[19] Continence Aids Payment Scheme Application Guidelines and Form.
The second contention was that the CAPS Guidelines should contain all necessary eligibility information including information about PCC portability. On this point, it was further contended that non-legally trained people should not have to wade through the Act to find such important information related to eligibility.
The third contention was that the Social Security Guide Version 1.324 (Social Security Guide) states that a replacement PCC should commence from the date the person returns to Australia and have the same expiry date, which was not the case in relation to his father’s replacement PCC.[20] The Applicant’s son contended it was unnecessarily bureaucratic to have to reapply for CAPS when the entitlement to hold a PCC resumed automatically upon returning to Australia.
[20] Social Security Guide Version 1.324, (‘Social Security Guide’).
Respondent’s Submissions
The Respondent accepts that Mr Miso Grgurevic is an Australia citizen for the purposes of CAPS and understands he suffers from permanent and severe incontinence caused by an ‘eligible other condition’ within the meaning of s 5(1)(a)(ii) of CAPS,[21] and as per the Respondent’s Statement of Facts, Issues and Contentions.[22]
[21] CAPS (n 1) s 5(1)(a)(ii).
[22] Respondent’s Statement of Facts, Issues and Contentions p 5, 36-37, (‘RSOFIC’).
However, the Respondent contended that as Mr Miso Grgurevic’s medical condition was not caused by an eligible neurological condition, to be eligible to participate in CAPS from 1 July 2023 he was required to hold or be eligible to hold a PCC.[23] On this point, the Respondent also contended that as at 1 July 2023, Mr Miso Grgurevic no longer qualified for the PCC issued to him on 18 October 2022 due to qualification for age pension and his absence from Australia for longer than six weeks.[24] Further, it did not matter that Mr Miso Grgurevic’s PCC had a valid date until 31 March 2024 printed on it,[25] as under s 1061ZUB(2) of the Act,[26] PCCs are portable for a maximum period of 6 weeks due to absence from Australia.
[23] Ibid p 5, 38.
[24] Ibid p 6, 42.
[25] Ibid.
[26] Ibid s 5(1)(a)(iii).
To be complete, the Respondent also contended that Mr Miso Grgurevic did not satisfy the criteria under s 5(1)(a)(iii) of CAPS,[27] which requires the holding of a Department of Veterans’ Affairs PCC or entitlement to such.[28]
[27] RSOFIC (n 22) p 43.
[28] Ibid s 5(1).
On the Applicant’s son’s contention that the CAPS Guidelines could benefit from the inclusion of examples of when a failure to hold a valid PCC or a break in entitlement may impact eligibility, (such as when cardholders are travelling overseas), at the hearing the Respondent said that they had passed this suggestion onto the Department of Health and Aged Care who has overall program and policy responsibility for CAPS.
On the Applicant’s son’s contention that the expiry date on Mr Miso Grgurevic replacement PCC is not consistent with information in the Social Security Guide, at the hearing the Respondent contended they had made inquiries about this anomaly but noted that the longer validity is beneficial to the Applicant.
CONCLUSION
Having regard to the above, the Tribunal is satisfied that Mr Miso Grgurevic was not eligible on 1 July 2023 for a payment under CAPS.
The CAPS Guidelines state that ‘eligible other conditions’ require that the Applicant has a valid PCC. The CAPS Guidelines also points out that not having a valid PCC or a break in entitlement may affect CAPS eligibility. Under subsection 5(1) of CAPS it is only if the permanent and severe incontinence is not due directly to an eligible neurological condition is the person not required to have a PCC to be eligible for CAPS.[29]
[29] Social Security Act (n 15) s 1061ZUB(2).
Section 1061ZUB of the Act provides that if a person is temporarily absent from Australia the person continues to be qualified for a PCC for a maximum period of up to 6 weeks.[30] Department of Home Affairs data shows that the Applicant departed Australia on 17 May 2023 and returned to Australia on 15 November 2023, which reflects a period of approximately 26 weeks.[31] This exceeded the PCC overseas non-cancellation period of 6 weeks and as a result the PCC ceased to be active.
[30] Ibid s 1061ZUB.
[31] T9, p 44.
The Social Security Guide state that where a person departs Australia and their temporary absence exceeds the maximum period the PCC will be cancelled regardless of whether the person continues to receive pension payments.[32] Further, the Social Security Guide also state the Secretary has no discretion to extend the non-cancellation period of a PCC.[33] The Tribunal will follow the Social Security Guide unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).[34]
[32] Social Security Guide (n 20) p 3.9.2.10.
[33] Ibid p 3.9.4.20.
[34] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.
The Social Security Guide state that an automatically issued PCC cancelled for exceeding the 6 weeks overseas maximum period will be replaced upon the person’s return to Australia, provided the person remains qualified and the card has not reached its expiry date.[35] The Social Security Guide further state that the replacement card should commence from the date the person returns to Australia and have the same expiry date as the first card that was cancelled.[36] However, in the Applicant’s case, the replacement card had the expiry date of 31 March 2025. The Tribunal finds that although this is an anomaly, it does not impact the outcome of this review.
[35] Social Security Guide (n 20) p 3.9.4.20.
[36] Ibid.
The Applicant’s son asked Services Australia why a new PCC was automatically issued to his father, but he had to reapply for restatement of his father’s CAPS payments.
The answer to that question is that Mr Miso Grgurevic’s return to Australia activated his qualification under s 1061 of the Act to obtain a PCC,[37] which then required a PCC to be issued under s 1061ZF of the Act to him;[38] meanwhile, participation in the scheme is by application under s 6 of CAPS.[39] There is no provision within CAPS which provides for the reinstatement of payments once eligibility has been reestablished, following a decision under s 9 that eligibility has ceased. The Tribunal appreciates that it may have been burdensome for the Applicant’s son to complete and submit a new application for his father. However, the Tribunal agrees with the Respondent’s contention that there is no discretion for the Tribunal to find that the PCC was operative for the purpose of CAPS or to grant payment. Therefore, the Tribunal affirms the decision under review pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth).[40]
[37] Social Security Act (n 15) s 1061.
[38] Ibid s 1061ZF.
[39] CAPS (n 1) s 6.
[40] Administrative Review Tribunal Act 2024 (Cth) s 105(a).
Date(s) of hearing: 6 January 2025 Advocate for the Applicant: Mr D Grgurevic Advocate for the Respondent: Ms L James, Principal Government Lawyer, Services Australia
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