GUZIAK and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 786
•14 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 786
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1897
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD GUZIAK Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr Wulf, Member Date14 October 2010
PlaceBrisbane
Decision The decision is set aside and the applicant is to be paid newstart allowance consistent with the reasons from 25 November 2009 to 15 January 2010. ...................[Sgd].................
Member
CATCHWORDS
SOCIAL SECURITY – Overseas portability of social security payment – Applicant received newstart allowance – Applicant absent from Australia from 25 November 2009 to 11 February 2010 for purpose of visiting mother in Poland – Applicant's mother critically ill in that period although alternate help obtained – Applicant's absence from Australia for purpose of attending to acute family crisis – Applicant's absence from Australia an allowable absence for specified period – Newstart allowance payable to applicant during part of the absence from Australia prior to when alternate assistance obtained – Decision under review set aside.
Social Security Act 1991 (Cth), ss 23, 1212A, s 1213, s 1215 and s 1217
Al Umari and Secretary to the Department of Family and Community Services [2003] AATA 431
Patania and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 840
REASONS FOR DECISION
14 October 2010 Mr Wulf, Member 1. Richard Guziak (“the applicant”) was receiving newstart allowance under the Social Security Act 1991 (Cth) (“the Act”) when, on 25 November 2009, he travelled to Poland to visit his mother who was seriously ill, and returned to Australia on 11 February 2010.
2. The applicant advised Centrelink the day before his departure.[1] Mr Guziak notified Centrelink that he planned to leave Australia on 25 November 2009 and travel to Poland to visit his mother who had “something wrong with her legs” and that he was going to “take care of her and help her as she is [a] widow”.
[1] T9/48 – Document 15 of 23.
3. On his return to Australia, his newstart allowance payments were restored and at this time, the applicant provided Centrelink with a medical certificate[2] from a medical practitioner in Poland,[3] handwritten in the Polish language, regarding his mother’s medical condition.
[2] 1 March 2010.
[3] Report of Dr Zwolenik of 5 February 2010, T5/24-28.
4. Centrelink obtained an English translation of the abovementioned medical certificate, and a Centrelink officer subsequently, by letter dated 1 March 2010, informed the applicant that it had been decided, on the basis of the information provided by him, that newstart allowance was not payable to him while he was absent from Australia.
5. That decision was affirmed by an Authorised Review Officer on 3 March 2010 and the latter decision was in turn affirmed by the Social Security Appeals Tribunal (“SSAT”) on 28 April 2010.
6. The applicant has applied to this Tribunal for review of the decision of the SSAT.
THE ISSUE AND THE TRIBUNAL’S DETERMINATION
7. The issue for the Tribunal’s determination is whether newstart allowance was payable to the applicant, in accordance with the relevant provisions in Part 4.2 of the Act relating to the overseas “portability” of social security payments, in the period from 25 November 2009 to 10 February 2010 when he was absent from Australia (“the relevant period”).
8. For the reasons which follow, the Tribunal has determined that newstart allowance is payable to the applicant from 25 November 2009 to 15 January 2010 only and not the full relevant period.
THE RELEVANT LEGISLATION
9. Pursuant to ss 1213, 1215 and 1217 of the Act, in the case of a person who is receiving newstart allowance in Australia, newstart allowance continues to be payable to that person, while that person is absent from Australia, for a maximum period of 13 weeks’ absence from Australia, provided that such absence is an “allowable absence” – that is (as stated in column 4 of item 15 in the table at the end of s 1217):
a temporary absence for any of the following purposes:
(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose.
10. The meaning of the phrase “acute family crisis”, for the purposes of Part 4.2 of the Act, is explained in s 1212A which provides:
1212AFor the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of visiting a family member who is critically ill; or
(b)for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c) for a purpose relating to the death of a family member; or
(d)for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
(i) is facing a family member; and
(ii) is beyond the control of the family member.
THE EVIDENCE
11. The evidence before the Tribunal comprised:
· the “T Documents” (pp 1-58) lodged by the Secretary, Department of Education, Employment and Workplace Relations in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits 3 including attached news report tendered in evidence by the applicant; and,
· the oral evidence of the applicant.
The applicant’s evidence
12. The applicant’s oral evidence may be summarised as follows:
· The applicant became aware that his mother was very ill and there was no one else in Poland that could assist her;
· The applicant’s mother required periodical hospitalisation to receive intravenous medication;
· His mother was completely immobilised, required constant care and refused to go to hospital – this is confirmed by the report of Dr Zwolenik who states that the “patient absolutely requires constant family care”;[4]
· There was no other direct family member living in Poland although there were cousins that might be able to assist – the applicant’s father died in March 1988;
· He stayed at his mother’s house the whole time that he was in Poland;
· He did everything for his mother while he was in Poland;
· Poland had one of the coldest winters on record with temperatures below minus 30, approximately 139 people died as a result of the cold and 8000 homes had no power at some stage during the cold snap[5];
· Mr Guziak confirmed that on or about 15 January 2010, he had found a third party to provide constant on-going care to his mother; and,
· He travels to Poland about once every 3 years to visit his mother and relatives.
[4] Report of Dr Zwolenik of 19 March 2010, T10/54 – 57.
[5] Attachment to Exhibit 3.
The medical evidence
13. The earlier medical certificate provided to Centrelink by the applicant dated 5 February 2010[6] is of little assistance to the Tribunal as the respondent was only able to translate minimal amounts of the document. The report was prepared by Dr Aleksandra Zwolenik, an Internal Diseases Specialist at CenterMed, a Diagnostic and Medical Clinic in Sobieskiego 2 in Poland.
[6] Report of Dr Zwolenik of 5 February 2010, T5/24-28.
14. Notwithstanding the limited translation, the report does indicate that Mr Guziak’s mother “requires constant care by family and constant medical care”.
15. Mr Guziak obtained a medical report dated 19 March 2010 again from Dr Zwolenik which provides more information, and was easily translatable as it was typed. According to the English translation of that medical certificate, the applicant’s mother was suffering from:
· Arterial hypertension of a serious degree (emphasis added);
· Chronic cardiovascular inefficiency;
· Bronchial asthma;
· Advanced degenerative spinal changes;
· Degenerative knee joint changes;
· Water and electrolytes disorders;
· Bilateral hearing loss; and
· Generalised atherosclerosis.[7]
[7] Report of Dr Zwolenik of 19 March 2010, T10/54 – 57.
16. The report further states that the patient has:
… old arterial hypertension ... bronchial asthma and undergoing orthopaedic rehabilitation …
17. And it further states:
The patient suffers pain, which significantly limit[s] her independent mobility.
…
The patient absolutely requires constant family care. In such situations she is unable to attend doctor’s appointments independently for consultation.
…
The patient’s ailments are of a chronic, progressive and irreversible character. In final effect, they lead to a significant restriction of movement and independent existence. For that reason constant family care and constant medical care are essential.
ANALYSIS
18. The applicant’s entitlement to continue to be paid newstart allowance during the period of his absence from Australia from 25 November 2009 to 15 January 2010 depends (relevantly) on whether that absence was for the purpose of attending to an “acute family crisis” as defined in s 1212A of the Act.
19. The applicant submitted that his absence from Australia in the relevant period was for the purpose of visiting his mother who was then critically ill, and it was therefore, in accordance with para (a) of s 1212A of the Act, for the purpose of attending to an “acute family crisis”.
20. There is no dispute that the applicant’s absence from Australia in the relevant period was for the purpose of visiting his mother, and that his mother is a “family member” within the meaning of para (a) of s 1212A (see the definition of the expression “family member” in s 23(14) of the Act). The matter in dispute is whether the applicant’s mother was “critically ill”, within the meaning of para (a) of s 1212A, in the relevant period.
21. In a similar case of Patania and Secretary, Department of Education, Employment and Workplace Relations,[8] the Tribunal was
Satisfied, on the basis of the abovementioned medical certificates issued by Dr Gianino, that the applicant’s mother is, and was at all material times, suffering from bilateral gonarthrosis (that is, inflammation of both knee joints), bilateral phlebitis of the lower limbs (that is, inflammation or swelling of a vein or veins in both legs) and arterial hypertension (that is, persistently high arterial blood pressure), and that each of those medical conditions is, and was at all material times, serious, grave or severe, having regard to her age (the Tribunal notes that she turned 80 years of age on 12 June 2007 in the relevant period).
[8] [2008] AATA 840 (19 September 2008).
22. In this matter, the applicant’s mother has similar medical conditions as that of Mr Patania’s mother. The question is, however, whether the applicant’s mother was rendered “critically ill”, by reason of the abovementioned medical conditions, in the relevant period.
23. The Tribunal notes that Dr Zwolenik, in the medical certificate issued by her on 19 March 2010[9], certified that the applicant’s mother’s “aliments are of a chronic, progressive and irreversible character” and, on the basis of that medical certificate, the Tribunal is satisfied that each of those conditions is chronic. The Tribunal is, furthermore, prepared to infer that her “arterial hypertension of a serious degree” is also a chronic condition.
[9] Report of Dr Zwolenik of 19 March 2010, T10/54 – 57.
24. There was also some evidence before the Tribunal as to the ongoing care of Mr Guziak’s mother. The applicant indicated to the Tribunal that he spent much of the first half of January 2010 trying to find someone that was able to provide his mother with constant ongoing care. Mr Guziak’s evidence was that none of his relatives lived in the same city as his mother and therefore, he needed to seek other assistance. Mr Guziak advised the Tribunal that he managed to find a replacement for him so to speak on or about 15 January 2010.
25. While not specifically related to the patient’s illness, it is also important to note the climatic conditions that were occurring in Poland at the time of the applicant’s visit. As previously noted, winter conditions of minus 30 were occurring in Poland at the time and approximately 139 people died[10]. The Tribunal finds that these conditions also impacted on Mr Guziak’s mother and that this would have been detrimental to her health.
[10] Attachment to Exhibit 3.
26. Finally, the Tribunal notes the applicant’s evidence that his mother lived at her home for the whole of the relevant period.
27. There is no statutory definition of the expression “critically ill” for the purposes of s 1212A(a) of the Act.
28. In Patania,[11] the Tribunal used a definition of “critical illness” as defined in the Online Medical Dictionary this being “A disease or state in which death is possible or imminent”.
[11] Patania and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 840.
29. The Tribunal finds that this in an inappropriate definition and is from a source that is not one that would normally be used by Australian Courts. It is normal practice for Australian Courts to use definitions contained in the Macquarie Dictionary.
30. In Al Umari and Secretary to the Department of Family and Community Services,[12] the Senior Member used what this Tribunal finds as the most appropriate source for definitions to be used by this Tribunal, that being the Macquarie Dictionary, and/or in the alternative, the Oxford Dictionary.
[12] [2003] AATA 431 (12 May 2003).
31. The definitions as sourced from those two dictionaries in Al Umari and Secretary to the Department of Family and Community Services,[13] were that
critically must be given its ordinary meaning. That meaning is that the person’s condition must be severe or grave (Macquarie Dictionary: 2nd Ed) or that there must be a crisis in the disease (New Shorter Oxford Dictionary: 4th Ed).
[13] [2003] AATA 431 (12 May 2003).
32. In the Tribunal’s opinion, that meaning accords with the common understanding of the description of a person’s state of health as “critically ill” and it is appropriate that the expression “critically ill” in para (a) of s 1212A of the Act be understood in that sense.
33. Having regard to the whole of the evidence, the Tribunal is satisfied that the nature and seriousness of the abovementioned medical conditions suffered by the applicant’s mother in the relevant period were such that, by reason thereof, death was possible or imminent in her case at that time, and the Tribunal is, accordingly, satisfied that she could properly be described as critically ill in the relevant period.
34. However, the temporary absence (b) to attend to an acute family crisis, the Tribunal feels, ceased once Mr Guziak was able to find alternative assistance in Poland for his mother.
35. It follows that the Tribunal is satisfied that the applicant’s absence from Australia from 25 November 2009 to 15 January 2010 was “for the purpose of visiting a family member who is critically ill”, within the meaning of para (a) of s 1212A of the Act.
CONCLUSION
36. The Tribunal concludes, therefore, that para (a) of s 1212A of the Act is satisfied in this case. No reliance was placed by the applicant on either para (c) or para (d) of s 1212A and the Tribunal, having regard to the evidence before it, is satisfied that neither of those paragraphs is applicable in this case.
37. Accordingly, the Tribunal finds that the applicant’s absence from Australia from 25 November 2009 to 10 February 2010 was for the purpose of attending to an “acute family crisis” within the meaning of s 1212A, and column 4 of item 15 in the table at the end of s 1217, of the Act; however only the period between 25 November 2009 to 15 January 2010 is relevant.
38. The Tribunal concludes, therefore, that newstart allowance is payable to the applicant in the period from 25 November 2009 to 15 January 2010 when he was absent from Australia.
DECISION
39. For the above reasons the Tribunal sets aside the decision under review and orders that the Respondent pay the applicant newstart allowance for the period of 25 November 2009 to 15 January 2010.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Wulf, Member
Signed: ....................[Sgd]................................................
Kate Slack, Research AssociateDate/s of Hearing 24 August 2010
Date of Decision 14 October 2010
Applicant was self-represented
Solicitor for the Respondent Simon Letch, departmental advocate
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