Hewett and Secretary, Department of Social Services (Social services second review)

[2016] AATA 629

Hewett and Secretary, Department of Social Services (Social services second review) [2016] AATA 629 (23 August 2016)

Division	GENERAL DIVISION
File Number	2016/1364
Re	Karu Hewett
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	23 August 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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Miss E A Shanahan, Member

SOCIAL SECURITY ­- disability support pension - portability - overseas for more than 28 days – disability support pension cancelled – does not meet the definition of severe impairment – seeking treatment for glaucoma – not advised by or supervised by an Australian medical practitioner – pension cancelled – decision affirmed.

Legislation

Acts Interpretation Act 1901
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security Administration Act 1999

Cases
Kristoffersen and Secretary, Department of Social Services (2015)

Secondary Material
Department of Human Services, Guide to Social Security Law

REASONS FOR DECISION

Miss E A Shanahan, Member

23 August 2016

1. Mr Hewett has been receiving the disability support pension (DSP) since 2009 for a medical condition stated to be a personality disorder.  In 2010, he was diagnosed with glaucoma. He has been using Latanoprost in the form of eye drops since that time. 

2. On 14 February 2015, without notifying Centrelink, Mr Hewett travelled to India. He stayed in India for some 23 days returning on 9 March 2015. One month later, on 9 April 2015, he departed again for India. He returned to Australia on 2 August 2015. His disability support pension was suspended on 14 April 2015, when he exceeded the 28 days maximum portability period provided under s 1217 of the Social Security Act 1991 (the Act). 

3. On Mr Hewett’s return to Australia, he requested a review of the decision. A review was undertaken by an authorised review officer (ARO) on 15 September 2015.  The determination was affirmed. 

4. Mr Hewett requested further review by the Social Security and Child Support Division of the Administrative Appeals Tribunal (1^st Tier Review) on 8 December 2015. On 18 February 2016 the 1^st Tier Review affirmed the decision.  Mr Hewett then applied for 2^nd Tier Review by the General Division of the Administrative Appeals Tribunal, lodging his application on 17 March 2016.

5. Mr Hewett was self-represented at the hearing. Mr James Henderson, a solicitor for the Department of Human Services, appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal had been provided with the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).

   BACKGROUND TO THE APPLICATION

6. Mr Hewett gave oral evidence. He said he has been receiving Newstart Allowance, which he calls the dole, since 11 December 1976 when he was 16 years of age.  The date of acceptance of his DSP was 23 October 2009.  Very little information has been provided relating to his personality disorder. It is said that the impairment rating of the disorder was 30 and the condition had been determined to be permanent following a job capacity assessment (JCA) performed on 18 August 2009.

7. Mr Hewett gave evidence that he had been told by a psychologist that he was the most extraordinary man in the world. He says he had been diagnosed with glaucoma at the Royal Victorian Eye and Ear Hospital in 2010.

8. On 14 February 2015 Mr Hewett travelled to India. He did not advise Centrelink or the Department of Human Services that he was leaving Australia. It was noted that he returned after 23 days, arriving back in Australia on 9 March 2015. On 9 April 2015 he again left Australia for India and once more failed to advise the Department of Human Services of his travel. As Mr Hewett had already been overseas for 23 days, his DSP was suspended on 14 April 2015 when he exceeded the annual overseas portability period of 28 days as provided in s 1217 of the Act. Having been informed of the suspension, Mr Hewett contacted the Department by email stating that he was in India to receive treatment for glaucoma. On 14 July 2015 the Department of Human Services decided to cancel Mr Hewett’s pension on the basis that he continued to be overseas for more than 13 weeks after DSP had been suspended.

9. Mr Hewett claims that before leaving for India he checked the Centrelink website. He says that he interpreted the information therein as meaning that he would not be affected as he could go overseas for 12 months if he was unemployable. 

10. In his evidence before the Tribunal on 4 July 2016, Mr Hewett said he had originally gone to India for treatment of his glaucoma.  He stated that he wished to avail himself of a 5000 year old Indian cure for this condition.  While his eye sight had not improved, he had lost 30 kilograms of weight on the program.  He agreed that he had not been referred for this treatment by an Australian medical practitioner.  He now has a regular general practitioner in Hoppers Crossing who has been most helpful and has arranged for him to be reviewed at the Royal Victorian Eye and Ear Hospital.

11. Mr Hewett also claimed that he had stayed in India longer than planned in order to provide protection for his female travelling companion.  He felt she would be at high risk travelling through India by herself.

12. Since returning to Australia following the cancellation of his DSP, Mr Hewett said that he has been forced to live in his car. His car is permanently parked in a paddock in Hoppers Crossing.  He is not able to drive the car as a result of a motor vehicle accident in which he was involved rendering the car unroadworthy.  He has not been able to re-register the vehicle because of his financial problems.  He gave evidence that he had walked to the AAT at City Road, Southbank from Hoppers Crossing, taking some four hours to complete this trip. 

13. In his evidence before the Tribunal Mr Hewett expressed his views on the Australian Constitution, the Federal Government’s responsibilities and the powers of the Governor-General and the Queen.  Mr Hewett advised that should his application to this Tribunal be unsuccessful he would be appealing to the International Court of Justice.

14. Since the cancellation of his DSP, Mr Hewett has been advised to undergo reassessment of his eligibility for the DSP, in particular whether he meets the definition of a severe impairment which provides unlimited portability of the DSP.  There was no evidence that he has acted on this recommendation to date.  It has also been suggested that, given Mr Hewett believes that the Centrelink website was defective when he checked it in approximately March 2015, he could make an application for compensation in accordance with the Compensation for Detriment Caused by Defective Administration Scheme (CBDA).  Mr Hewett has not done so. 

    EVIDENCE BEFORE THE TRIBUNAL

15. Mr Hewett’s evidence to the Tribunal has been summarised under BACKGROUND TO THE APPLICATION.  No other witnesses were called. 

    RELEVANT LEGISLATION

16. Section 1217 of the Act states that a person’s payment is not payable if they remain absent from Australia after the portability period for DSP is 28 days whether consecutive or not, in a 12 month period.

17. There are exceptions to the maximum portability period provided by s 1217. These are for eligible medical treatment. s 1217 Item 2AA provides:

Portability of social security payments
Column 1	Column 2	Column 3	Column 4	Column 5
Item	Payment	Person	Absence	Maximum portability period
2AA	Disability support pension	Australian resident disability support pensioner	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	4 weeks (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D)

1. Section 1212 of the Act defines eligible medical treatment as being medical treatment of a kind that is not available to a person in Australia.

2. The Guide to Social Security Law at Instruction 7.1.2.20 provides that:

   Eligible medical treatment, in relation to a recipient, means medical treatment of a kind that is not available to the recipient in Australia. 

   Clarifying examples are provided, which appear to exclude treatment such as that Mr Hewett states he was seeking.  The guide further clarifies that eligible treatment should be guided by the opinions of registered Australian medical practitioners.

3. The Act also provides in s 1218C(1) that the period may be extended under certain conditions when the individual is unable to return to Australia.  None of these appear to apply to Mr Hewett.

4. Unlimited portability is addressed in s 1218AAA which states:

   1218AAAUnlimited portability period for disability support pension—severely impaired disability support pensioner

   (1)The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

   (a)the person is receiving disability support pension;

   (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

   (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

   (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

5. Where reassessment of the eligibility for DSP is required in order to establish unlimited portability, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) in force on the day notice was given are to be used in the assessment  (s 27(3) of the Act).

6. Section 1215 of the Act governs the operation of payments where a portability period applies.  Section 1215(1)(b) provides that a payment is not payable to a person where the absence from Australia continues after the end of a portability period.

7. The Secretary’s powers in respect of a payment that is not payable are outlined in ss 80 and 81 of the Social Security Administration Act 1999 (the Administration Act). Section 80 provides that:

   81Cancellation or suspension determination

   1If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a) who is not, or was not, qualified for the payment; or

   (b)to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended.

   2Subsection (1) does not authorise the Secretary to make a determination if:

   (a)the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and

   (b)the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.

   3However, subsection (1) authorises the Secretary to make a determination that:

   (a)cancels a social security payment that has been suspended under subsection 81(3); and

   (b)takes effect at or after the time the suspension took effect.

   SUBMISSIONS

8. Mr Hewett did not make formal submissions.

9. Mr Henderson, on behalf of the Secretary, outlined the current legislation referred to above. Mr Henderson cited the AAT decision in Re Kristoffersen and Secretary, Department of Social Services (2015) 67 AAR 482. In that case, it was determined that Mr Kristoffersen had misunderstood the provisions of the Act. The Tribunal determined that in order to establish that an applicant had a severe impairment they must be reassessed with reference to the current Impairment Tables. Mr Henderson submitted that on this basis, in order to establish his unlimited portability, Mr Hewett must seek a fresh assessment in accordance with the current Impairment Tables.

10. Mr Henderson also contended that there was no evidence that Mr Hewett satisfied any of the legislated extensions to the portability period.  This was made on the basis that Mr Hewett had not provided any evidence of the diagnosis of glaucoma; of his intended travel to India; that he had a severe impairment on the current tables or that his alternative treatment of glaucoma in India was in any way an approved treatment.  There was no evidence before the Tribunal that Mr Hewett even underwent such treatment.

    TRIBUNAL’S DELIBERATIONS

11. Legislative changes in relation to the portability of DSP came into effect on 1 January 2015. Section 1217(2) of the Act provided that the maximum portability period for DSP recipients was a total of 28 days in a 12 month period. Mr Hewett’s absence overseas in India during April 2015 exceeded this 28 days, 5 days into his second overseas trip. The second overseas trip lasted for a further 110 days, to a total of 115 days.

12. Mr Hewett did not advise Centrelink of his plans to travel overseas, as is required by the guidelines.  He has given evidence that he accessed the Centrelink internet page prior to his departure and ascertained that, in terms of his interpretation of the content of the website, his portability would be for a period of 12 months given he was unemployable. 

13. Section 1215(b) of the Act clearly states that where a payment is subject to a portability period, a person’s payment is not payable if they remain absent from Australia beyond that portability period. Section 1217 of the Act clearly states that in Mr Hewett’s case, that period is 28 days.

14. The Act does provide for exceptions to the 28 day limit.  The portability period may be extended for a period of four weeks, where the recipient of the DSP is seeking eligible medical treatment. Section 1212 of the Act clearly provides that this must be treatment that is not available in Australia.  The types of treatment approved are extremely wide and include a limited range of forms of alternative medicine. 

15. Mr Hewett claimed that he went to India for treatment of glaucoma.  The treatment is said to be an Indian remedy, which has been in use for 5000 years.  No evidence has been provided as to Mr Hewett having been diagnosed with glaucoma. There is no evidence that an Australian medical practitioner recommended or supervised such treatment or that such treatment whatever it might be, is not available in Australia.  In addition Mr Hewett has not provided any confirmatory evidence that he received any treatment whilst in India. 

16. Section 1218C(1) of the Act provides for a general extension where the DSP recipient is unable to return to Australia because of a listed variety of events which include such as serious illness, hospitalisation or death of a family member or, a natural disaster and political or social unrest in the country that is being visited.  None of these apply to the facts provided by Mr Hewett.

17. Unlimited portability is attracted in s 1218AAA(1) where the recipient of the DSP has a severe impairment as defined, being 20 points under a single Impairment Table, and the Secretary is satisfied that this severe impairment will last for at least five years and would prevent the person from performing any work independently of a program of support for that time.  Persons seeking such unlimited portability in accordance with the guide are required to undergo an assessment of their impairment and future work capacity in order to satisfy this section.  This assessment is conducted in accordance with the Impairment Tables in force at the time.

18. Mr Hewett does not satisfy any of the discretionary provisions allowing an extension of time of portability for overseas travel.  He has not been reassessed as having a severe disability in accordance with the current Impairment Tables.  He has provided no medical or other evidence with respect to his glaucoma diagnosis, or whether the treatment he sought was eligible medical treatment under the supervision of an Australian practitioner

19. As Mr Hewett does not qualify for unlimited portability, he is subject to a portability period. The effect of this is that when Mr Hewett’s absence from Australia exceeded his portability period of 28 days, his payment became non-payable pursuant to s 1215(b) of the Act. The Secretary was then required to suspend or cancel the payment, pursuant to s 80(1) of the Administration Act.

20. Following a suspension of 13 weeks, the Secretary further decided to cancel Mr Hewett’s payment.  There is nothing preventing the Secretary from taking such a course of action (s 33(1) Acts Interpretation Act 1901).  Further, the Tribunal determines that given the extent of Mr Hewett’s absence from Australia and that he had already been subject to a suspension period of an appropriate length, the decision to cancel Mr Hewett’s DSP on 14 July 2015 was the preferable decision.

21. For these reasons, the Tribunal affirms the decision under review.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member

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Associate

Dated 23 August 2016

Date of hearing	4 July 2016
Applicant	In person
Advocate for the Respondent	Mr James Henderson - Department of Human Services