Jamal and Secretary, Department of Social Services (Social services second review)
[2016] AATA 43
•1 February 2016
Jamal and Secretary, Department of Social Services (Social services second review) [2016] AATA 43 (1 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2730
Re
Jon Jamal
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Prof R McCallum AO, Member
Date 1 February 2016 Place Sydney The decision of the former Social Security Appeals Tribunal that Mr Jamal's portability period should not be extended is affirmed.
........................................................................
Prof R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – suspension – extension of six week portability period – whether Applicant’s injury prevented him from returning to Australia – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 1215, 1217, 1218C
CASES
Farah and Secretary, Department of Social Services (Social services second review) [2015] AATA 675
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Prof R McCallum AO, Member
1 February 2016
INTRODUCTION
The Applicant, Mr Jon Jamal has been in receipt of Disability Support Pension (DSP) since 4 May 2007.
On or about 9 October 2014, Mr Jamal informed Centrelink of his intention to depart Australia on 30 October 2014 to travel to Egypt, and to return on 30 December 2014. Centrelink asserts that during a phone conversation on 9 October 2014, Mr Jamal was notified that his DSP could be paid outside Australia until 11 December 2014 and that payment would be stopped if he remained outside Australia beyond that date.
On 30 October 2014, Mr Jamal left Australia, and on 2 December 2014 he sustained a dislocated shoulder whilst in Egypt. Mr Jamal was treated by Dr Khaled Manteser in Egypt. Under a general anaesthetic a reduction was performed, ostensibly leaving the shoulder in a "good position". Dr Manteser stated that Mr Jamal required "2 months in the bed at last with physiotherapy".
On 11 December 2014, Mr Jamal's DSP was suspended because he remained overseas.
Mr Jamal made two alterations to his original flight which was scheduled to have him return to Australia on 30 December 2014. On 25 December 2014, Mr Jamal altered his flight to a return date of 9 January 2015. On 6 January 2015, Mr Jamal once more altered his flight with a return date of 29 January 2015.
Mr Jamal returned to Australia on 29 January 2015. His DSP payments were restored from 29 January 2015, that is the date of his return to Australia.
On 6 February 2015, an extension for portability was rejected on the ground that the injury sustained by Mr Jamal was not so severe as to prevent him from returning to Australia before the portability period ended.
Mr Jamal sought review from an Authorised Review Officer (ARO), and then from the former Social Security Appeals Tribunal (SSAT), but to no avail.
The SSAT found that Mr Jamal "clearly had no intention of ever returning during this [portability] period" and that in any event, Mr Jamal had successfully sought treatment and was not inhibited from returning to Australia.
Mr Jamal now appeals to this Tribunal.
THE ISSUE BEFORE THE TRIBUNAL
The sole issue before me as I stand in the shoes of the Secretary, is whether the decision of 6 February 2015 not to extend Mr Jamal's portability was the correct or preferable one.
PORTABILITY OF DSP
The provisions governing portability of DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act).
Under section 1215 of the SS Act, DSP payments can continue to be paid for a limited period of time while a person is absent from Australia. The period of time in which the person can be paid is referred to as the portability period.
Section 1217 of the SS Act contains a table which sets out the length of the portability period. The relevant item in the table for Mr Jamal is item 2.
There is no evidence before me concerning claims that Mr Jamal was eligible for unlimited portability by reason of severe impairment (section 1218AAA of the SS Act) or terminal illness (section 1218AA of the SS Act).
At the time of Mr Jamal's absence from Australia, the maximum portability period was six weeks.
Section 1218C of the SS Act sets out the circumstances for the portability period to be extended. It relevantly provides as follows.
(1) The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person 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;
...
(2) The Secretary must not extend the person’s portability period under subsection (1) unless:
(a) the event occurred or began during the period of absence;
...
(3) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.
The Guide to Social Security Law sets out departmental policy. Section 7.1.2.10 provides as follows.
It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia. It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia at the first available opportunity (e.g. where an extension is allowed due to illness, the recipient is required to return immediately when their health allows this) - extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia.
While I am not bound to apply departmental policy guidelines, I should have regard to these guidelines unless there are cogent reasons in the case before me not to do so. See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645. In the matter before me, there are no cogent reasons which prevent me from adhering to these policy guidelines.
THE HEARING
The date of the hearing was 9 December 2015. Mr Jamal attended the hearing and was assisted by an interpreter in the Arabic language. Mr Jamal was the only person who gave evidence.
Mr Jamal handed to the Tribunal a medical certificate from Dr Khaled Manteser, Orthopedic Surgeon, dated 20 October 2015. I admitted this medical certificate into evidence.
The photographs of Mr Jamal's injury
Mr Jamal wrote a letter to the Tribunal suggesting that I should not sit and that I be replaced by another Member. I admitted this letter into evidence.
The primary reason why Mr Jamal suggested that I not sit is because he wished to adduce into evidence photographs of the injury to his shoulder. I am totally blind and am unable to see photographs.
I asked Mr Jamal what purpose would be served by the photographs. The Respondent agreed that Mr Jamal suffered the injury to his shoulder, and that the Respondent did not contest that Mr Jamal had suffered an injury to his shoulder.
After a brief adjournment, I admitted four photographs of Mr Jamal's shoulder injury into evidence. I explained that in my view they had little relevance because the issue before me was whether his portability should be extended and this primarily depended upon the medical evidence. I said that I would ask Mr Jamal to describe the photographs to me.
THE EVIDENCE OF MR JAMAL
Mr Jamal gave sworn evidence with the assistance of the interpreter. On some occasions he spoke in English and answered questions in English. However, most of his answers were interpreted into English from Arabic.
At the outset of his evidence, Mr Jamal said that Centrelink had made a mistake because Centrelink had failed to inform him that his portability period was only six weeks. I explained that the Parliament of Australia prescribed the portability period.
Mr Jamal explained that on the morning of 2 December 2014, he slipped in the bathroom after finishing a shower and dislocated his shoulder. He said that he was alone at the time. Mr Jamal waited until the public hospital was open, and then he took a taxi to the public hospital.
He said that two weeks later he went to see Dr Manteser at his clinic.
Mr Jamal was asked why this was not written in Dr Manteser's report. Mr Jamal said that he did not know.
Mr Jamal said that the four photographs of his shoulder were taken at the public hospital when the x-rays were being taken.
Mr Jamal described the four photographs of his left shoulder. He described the extensive bruising.
In cross-examination, it was suggested to Mr Jamal that as his return ticket was dated 30 December 2014, he never intended to return to Australia before the end of the portability period. Mr Jamal replied that as he had informed Centrelink of his travel dates, in his view they had accepted that he should be paid DSP until his return.
Mr Jamal was taken to the decision of the ARO which is contained in a letter to Mr Jamal dated 20 March 2015. The ARO wrote as follows.
I spoke to Dr Colin Chu today and he confirmed that the usually recovery time for a repositioned shoulder dislocation would not have stopped you [that is Mr Jamal] from returning to Australia on 30 December 2014 as planned or earlier.
In response, Mr Jamal said that he had subsequently spoken to Dr Chu, and Dr Chu had informed him that his statement to the ARO was a general statement about the usual time for persons to recover from this type of shoulder injury.
In his concluding statement, Mr Jamal said that Dr Manteser had advised him not to travel because the airport is crowded, and as he does not have medical insurance the airline would not let him board the flight.
Mr Jamal said that if the Tribunal was not satisfied with his evidence, he wished for an adjournment to obtain further expert medical evidence. I refused the application for an adjournment as Mr Jamal has had sufficient time to obtain medical evidence.
FURTHER DOCUMENTS
On the day after the hearing, that is on 10 December 2015, Mr Jamal faxed a bundle of documents to the Tribunal. In that bundle, there were two further medical reports which had not previously been sent to the Tribunal. These medical reports are From Dr Attia dated 24 March 2015, and from Dr Colin Chu dated 26 March 2015.
I admitted these two further reports into evidence and gave the Respondent until 18 December 2015 to forward any comments to the Tribunal.
The Respondent made further comments to the Tribunal in correspondence dated 23 December 2015. The relevant portion of this correspondence is as follows.
In relation to the two new documents, the Secretary makes the comment that these are medical reports from the Applicant’s GPs (Dr Chu’s report dated 26 March 2015 and Dr Attia’s report dated 24 March 2015). In evidence before the Tribunal are other reports by these GPs, which pre-date and post-date these two new reports. There is no explanation provided for the late production of these documents. The Tribunal impressed upon the Applicant at the hearing that the Applicant had had ample opportunity to provide any evidence he wished to rely on for his hearing. Nonetheless, the Secretary submits that the substance of the reports do not add any new information to existing medical evidence and would not change the Secretary’s position as outlined in [the Respondent's statement of facts and contentions]...
CONSIDERATION
The sole issue before me is whether the decision of 6 February 2015 not to extend Mr Jamal's portability was the correct or preferable one. This decision was confirmed by the ARO and also by the SSAT.
In other words, pursuant to subsection 1218C(1) paragraph (a) of the SS Act, I may extend Mr Jamal's portability period if I am satisfied that Mr Jamal was unable to return to Australia because of a serious accident which he suffered on 2 December 2014.
Did Mr Jamal intend to return to Australia before the expiration of his portability period?
I find that Mr Jamal did inform Centrelink of his travel plans on or about 9 October 2014 when he telephoned Centrelink. In other words, he did inform Centrelink that he intended to leave Australia on 30 October 2014 and to return on 30 December 2014.
I accept that Centrelink did inform Mr Jamal that his portability period would expire on or about 11 December 2014. It may be that Mr Jamal misunderstood what was said to him on the telephone.
However, I further find that I am not satisfied that Mr Jamal intended to return to Australia before the end of his portability period, that is by 11 December 2014. His original return ticket was for 30 December 2014.
In Farah and Secretary, Department of Social Services (Social services second review) [2015] AATA 675, Senior Member Egon Fice examined an analogous case. Senior Member Egon Fice wrote at paragraphs 10 and 26 as follows.
[10] ... Plainly, even before I examine the reasons given by Mr Farah for being unable to return to Australia within the six week portability period, the evidence discloses that he did not in fact intend to return within that period in any event.
[26] ... Mr Farah's travel documents prepared before he left Australia to go to Lebanon plainly indicate he did not plan to return until almost one week after the six week portability period had concluded. On that basis alone, his DSP payments would have been cancelled on 19 July 2014. In those circumstances, his portability period could not have been extended in any event because he would not have satisfied s. 1218C(2) of the Social Security Act.
I agree with the approach taken by the Senior Member. Subsection 1218C(2) paragraph (a) of the SS Act requires the event, that is Mr Jamal's serious accident, to have "occurred ... during the period of absence". In the matter before me, the evidence is that Mr Jamal did not intend to return to Australia until 30 December 2014. This finding disposes of the matter before me.
The dislocation of Mr Jamal's shoulder
However, given the medical evidence before me, I shall examine Mr Jamal's assertion that the shoulder injury prevented him from returning to Australia until 29 January 2015.
It is clear from all of the evidence that Mr Jamal did suffer a serious accident when he dislocated his shoulder on 2 December 2014. The Respondent accepts that this accident took place.
In his contemporary report dated 2 December 2014, that is on the day of the accident, Dr Manteser wrote that a reduction was performed under general anaesthetic. He wrote that "x- Ray Show good position". He wrote that Mr Jamal required "2 months in the bed at last with physiotherapy".
This contemporaneous report from Dr Manteser differs from the oral evidence of Mr Jamal who said that he visited Dr Manteser at his clinic two weeks after the accident. I find Mr Jamal's statement that he did not see Dr Manteser until two weeks after the accident to be implausible, and I accept Dr Manteser's written statement that he saw Mr Jamal on the day of the accident, that is on 2 December 2014.
The most recent medical report which Mr Jamal handed up on the day of the hearing is a medical certificate from Dr manteser dated 20 October 2015. Dr Manteser writes as follows.
Mr Jamal was not able to travel back to Australia in December 2014 because of his health problems included his left shoulder dislocation joint.
Although Dr Manteser went on to write that Mr Jamal needed further time in bed and that the long flight to Australia would exacerbate the pain in his shoulder, he did not write that Mr Jamal could not travel in January 2015. In his contemporaneous report of 2 December 2014, Dr Manteser did not write that Mr Jamal could not travel by plane back to Australia in December 2014. I give greater weight to the contemporaneous report of Dr Manteser and less weight to his later report of 20 October 2015.
I have examined the medical certificates from Dr Colin Chu dated 26 March 2015, 3 August 2015, and 28 August 2015. In the medical certificates dated 3 August 2015 and 28 August 2015, Dr Chu uses the same words concerning Mr Jamal's failure to travel to Australia in December 2010. In these two medical certificates, Dr Chu writes as follows.
This is to certify that I saw Mr Jon Jamal on 2nd February, 2015 when he had returned from overseas. He was not able to travel for a variety of reasons in December, 2014.
Dr Chu gave further details about Mr Jamal's shoulder injury. However, Dr Chu does not state that Mr Jamal was unable to travel to Australia in January 2015. Given that Dr Chu did not examine Mr Jamal's shoulder until 2 February 2015, I give these certificates less weight than I give to the contemporaneous report of Dr Manteser.
I have quoted above the extract from the ARO's letter of 20 March 2015 in which she recorded her phone conversation with Dr Chu. In his oral evidence, Mr Jamal said that he had subsequently spoken to Dr Chu who explained that he was speaking to the ARO about shoulder injuries generally and not about Mr Jamal's injury.
I find Mr Jamal's explanation to be improbable. If Dr Chu was aware of this misunderstanding, I would have expected him to correct this misunderstanding at the latest in his report dated 28 August 2015.
As I have noted above, the Guide to Social Security Law states that “...extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia”.
I am satisfied that if Mr Jamal had returned to Australia before the end of his portability period, he would have been able to receive rest and physiotherapy treatment in Australia.
Conclusion
Having regard to the medical evidence and to the evidence of Mr Jamal, I make the following findings.
First, I find that I am not satisfied that Mr Jamal intended to return to Australia before 30 December 2014. In other words, I am not satisfied that Mr Jamal intended to return to Australia before the expiration of his portability period. This finding does dispose of this matter.
Second, having regard to the injury to Mr Jamal's shoulder, I further find that I am not satisfied that the dislocation of Mr Jamal's shoulder prevented him from returning to Australia on or about 11 December 2014, and it certainly did not prevent Mr Jamal flying back to Australia before 29 January 2015. I accept that he did require ongoing treatment and that he would have suffered some pain on the return flight. However, I do not accept that he would not have been able to fly back to Australia on or about 11 December 2014.
DECISION
The decision of the former Social Security Appeals Tribunal that Mr Jamal's portability period should not be extended is affirmed.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Prof R McCallum AO, Member ...................................[sgd].....................................
Associate
Dated 1 February 2016
Date(s) of hearing 9 December 2015 Date final submissions received 23 December 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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