Jaskulski and Secretary, Department of Social Services (Social services second review) - [2020] AATA 3129

Jaskulski and Secretary, Department of Social Services (Social services second review) [2020] AATA 3129 (20 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3430
Re:Michal Jaskulski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:20 August 2020
Place:Sydney

The decision under review is affirmed.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – whether the Applicant’s overseas travel for medical treatment qualified as an allowable absence – portability assessment – s 1217 – whether the Applicant meets the requirements of eligible medical treatment – whether the medical evidence which was sought by the Applicant overseas available to him in Australia – Applicant contends that the medical treatment was not available to him in Australia as it was at a cost he could not afford – medical treatment available through Medicare – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth) – ss 1212, 1215, 1217
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Osmani, and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605
Secretary, Department of Social Security and Barbara Wills [1998] AATA 400
Welcker v Secretary, Department of Social Services [2019] AATA 1566
SECONDARY MATERIALS
The Social Security Guide
REASONS FOR DECISION
Mr S Evans, Member
20 August 2020

The Applicant, Michal Jaskulski, was in receipt of newstart allowance in May 2017 when he travelled to Poland for medical treatment. Upon his return to Australia he was informed by the Department of Social Services that he would not be paid newstart allowance for the period he was overseas. Mr Jaskulski submits that this decision is incorrect as medical treatment is an allowable absence and therefore seeks review of the decision.
INTRODUCTION
Mr Jaskulski lodged a portability assessment request with the Department of Social Services (“the Respondent” also known as “Centrelink”) on 20 September 2017. His request was rejected by Centrelink on 9 January 2018. Mr Jaskulski sought review by an Authorised Review Officer (“ARO”), who affirmed the decision. Mr Jaskulski sought review of the ARO’s decision with the Social Services and Child Support division of the Tribunal (“AAT1”) which affirmed the decision of the ARO on 8 February 2019. Mr Jaskulski now seeks review of the AAT1 decision with this Tribunal.
The matter was heard on 10 June 2020 and Mr Jaskulski and the Respondent’s representative appeared via video conference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). Mr Jaskulski was self-represented and prepared a written submission for the Tribunal.
Unless otherwise stated, the findings which follow are based on the evidence of Mr Jaskulski.
For the reasons which follow, the decision under review is affirmed.
FACTS AND EVIDENCE
Mr Jaskulski travelled to Poland for medical treatment between 20 May and 16 September 2017. I will refer to this as the “relevant period”.
Centrelink online documents confirm that Mr Jaskulski was in regular contact with the Respondent prior to his travels. On 12 May 2017, he contacted Centrelink and advised he would be travelling to Poland from 20 May 2017 and will return before 1 July 2017, a period of six weeks. In a Centrelink record of his contact on 12 May 2017, it is recorded that “Newstart Allowance cannot be paid outside Australia because customer is travelling for a reason that does not allow payment outside Australia”.
On 18 May 2017, Mr Jaskulski followed up his previous enquiry and it is recorded in the Centrelink online document from that day:
His [Mr Jaskulski’s] mental health and stress levels were quite high, as he has not had the time to be assessed under portability requirements to have NSA portable while away. So case worker is NOM [nominated] and is to continue acting on his behalf while absent . to try and restore and continue on NSA until he return home from treatment. He [Mr Jaskulski] has not been notified of this review, as we discussed several other requirements and issues relating to medical evidence to make payments portable.
Mr Jaskulski submits that prior to his departure while he “consistently informed Centrelink the reason for my travel is to seek medical treatment not available to me in Australia”, he was not informed that his travel may not qualify as an allowable absence.
Whilst he initially planned to travel to Poland for six weeks of treatment, Mr Jaskulski was required to stay for longer in order to complete his medical treatment. Mr Jaskulski’s treatment schedule was set back because he suffered a panic attack on the flight to Poland. Upon arrival in Poland, he decided to change physiotherapists. Further delays were caused by his treating physiotherapist being injured in a storm. He has provided evidence that his final medical appointment, with Dr Zawadski, was 10 September 2017.
Medical conditions
Dr K Lukaszewicz is a general practitioner and writes Mr Jaskulski’s travel enabled him to access treatment which is “only available privately in Australia and is not affordable to him”. He notes that Mr Jaskulski had already used the five physiotherapy treatments which were available to him through Medicare and that he had access to unlimited physiotherapy treatment at no cost whilst in Poland.
He writes that Mr Jaskulski “accessed GPs, a neurologist, an orthopaedic surgeon and psychologists. He also had a number of scans done. All of these specialists were available to him for free in Poland. A neurologist appointment alone in Australia costs around $400, something Michal cannot afford”.
Dr Lukaszewicz also notes that some of the medical treatments enabled Mr Jaskulski to meet the eligibility criteria for his subsequently successful disability support pension application.
Mr Jasulski submits that he informed the Respondent of his travel plans and was not informed that “his treatment may be construed as ineligible” treatment.
Further, he reasons that whilst the medical treatment he received in Poland was available in Australia, it was available only at a cost which he could not afford, therefore making it too expensive to be available to him.
He also argues that some of the treatment he received in Poland was not widely available in Australia, or not available at all. He says that paid treatments, such as physiotherapy, were also longer in duration in Poland than in Australia.
The costs of Mr Jaskulski’s travel and expenses whilst in Poland were covered by a member of his extended family. He was not provided with the option of using the money provided by his relative to pay for medical treatment in Australia.
ISSUE TO BE DETERMINED
The issue to be determined by the Tribunal is whether Mr Jaskulski’s absence was an allowable absence for the purpose of section 1217 of the Social Security Act 1991 (Cth) (“the Act”)
RELEVANT LEGISLATION AND GUIDELINES
The rules regulating the payment of newstart allowance to people travelling overseas are found in Pt 4.2 of the Act. The basic portability provisions are set out in section 1215:
1215 Some payments generally portable with time limit
(1)       If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:
(a)       throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;
(b)       throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person.
Note: Section 1217 defines the person’s maximum portability period and portability period for the payment.
(2)       This section is subject to Subdivision B of this Division (which contains exceptions) and section 1220.
The Meaning of maximum portability period, allowable absence and portability period:
Section 1217 of the Act provides a meaning of maximum portability period, allowable absence and portability period. Read with the table at the end of section 1217, it provides the following in relation to newstart allowance:
A temporary absence may be 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.
The maximum portability period for newstart allowance is the period referred to in column 5 of the table in section 1217, which is 6 weeks.
Eligible medical treatment is defined in section 1212:
eligible medical treatment, in relation to a person, means medical treatment of a kind that is not available to the person in Australia.
The Social Security Guide (“The Guide”) states at 7.1.2.20:
Application of portability rules
Eligible medical treatment, in relation to a recipient, means medical treatment of a kind that is not available to the recipient in Australia. It could include specialised or new types of surgery such as transplants or other kinds of treatment. Such a determination would be guided by the opinions of registered Australian medical practitioners. However, treatment does not necessarily satisfy the definition of eligible medical treatment just because a doctor approves or recommends the treatment. For example, iridology, herbal treatment, faith healing and similar treatments are not considered to be eligible medical treatment.
If the recipient's circumstances satisfy the eligible medical treatment criteria, then payments may continue for a specific negotiated period of no longer than the allowed portability period for the qualifying payment. The length of payment will be restricted to the period of time required to complete the treatment, including recuperation and any allowances that must be made for return travel.
CONSIDERATION
The Guide requires eligible medical treatment to be a kind that is not available to the recipient in Australia.
The Secretary contends that as the treatment Mr Jaskulski received in Poland is available in Australia it does not meet the requirements set out in the Guide.
Mr Jaskalski acknowledges that the treatment he received was available in Australia, but argues it was not available to him as it required him to access the treatment privately at a cost which he could not afford.
The Tribunal is not bound by departmental policy, including the Guide. Generally, as Brennan J said in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, unless there are reasons for not applying departmental policy, then the Tribunal should do so. As the Respondent submits, applying the Department’s policy promotes consistency and fairness in decision making.
Consistency of decision making is also enhanced through reference to decisions by this Tribunal. Mr Jaskulski draws the Tribunal’s attention to the matter of Osmani, and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605 (“Osmani”). In Osmani SM Fice considered the issue of accessibility in relation to eligible medical treatment in similar circumstances. Having considered the Act and then the Guide in relation to eligible medical treatment, SM Fice concluded:
[33] The statute only permits portability where the person is absent for the purpose of seeking eligible medical treatment. Eligible medical treatment is defined in the Act as medical treatment of a kind that is not available to the person in Australia. What I must determine is whether the nature of the treatment received by Mr Osmani in Croatia was available to him in Australia.
[34] The problem for Mr Osmani is that the treatment he sought was available in Australia. The fact that it was difficult to find readily available treatment in Australia does not, in my opinion, satisfy the statutory expression. If it were the case that the only treatment for Mr Osmani’s condition was provided by private organisations, and the cost to Mr and Mrs Osmani was prohibitive, I would be satisfied that the treatment was not available to Mr Osmani in the terms of s 1217 of the Act. It would not, in my opinion, be correct to say that the kind of treatment is available when it is not affordable to the person seeking the treatment.
[Emphasis added]
Mr Jaskulski’s submits that his situation is comparable to that in Osmani. It is apparent that the treatment he received in Poland appears to meet the criteria set out above in so much as it was determined that treatment which is available but not affordable may qualify as eligible medical treatment.
However, unlike the treatment sought in Osmani, the treatment that Mr Jaskulski received overseas was available to him through the public health system, though he had exhausted the Medicare allowance which was accessible to him that year. To this point SM Fice continues at [35]:
However, and although this must seem harsh in Mrs Osmani’s circumstances, the kind of treatment which was available to her son in Croatia was available through the public system in Australia. Although it might be true to say that the treatment offered in Croatia was more effective than any programs she investigated in Australia, that does not alter my opinion. Effectiveness of treatment is not a relevant consideration under the statute. Also, the fact that there were lengthy waiting periods for some facilities does not, in Mr Osmani’s circumstances, mean that those services were not available to him in Australia.
[Emphasis added]
Similarly, Mr Jaskulski’s sought after treatments were available to him through the public health system in Australia. The fact that he had used his Medicare allocation of physiotherapist and psychologist sessions that year creates an outcome not unlike the lengthy waiting periods referred to in Osmani as the treatments sought would again become available to him at the start of a new calendar year.
It is important for the Tribunal to look carefully at the legislation. It would appear that in circumstances where an applicant cannot afford to access medical treatment, then the treatment is not available to that person and may be eligible medical treatment. Indeed, the Act makes no intimation or reference to the criteria set out in the Guide including a requirement that eligible treatment be of a kind not be available in Australia.
That said, as SM Fairall observed in Welcker v Secretary, Department of Social Services [2019] AATA 1566:
While the Tribunal is unconstrained by the strictures of policy statements in pursuit of the correct or preferable decision, consistency is an important aspect of good administrative decision-making. While the Tribunal is not bound by its own decisions, good government requires that like administrative decisions should be treated alike. Only cautious and sparing departures from pre-existing policy should be made and then only for good reasons.
Having considered the legislation, the Guide and other relevant decisions of this Tribunal including Osmani, it is apparent that the consistent, correct and preferable course is to apply the Guide in determining Mr Jaskulski’s application.
As noted by the Respondent, the treatment Mr Jaskulski sought is available in Australia. This is confirmed by Dr Lukaszewicz who writes that treatment received by Mr Jaskalski whilst in Poland was available in Australia. The Secretary also contends that physiotherapy is available privately for $70.00 a session, and argues that this is not a prohibitively expensive, particularly in the context of the costs associated to travelling and staying overseas.
Mr Jaskulski has provided evidence of receiving treatment for his conditions, and a letter from Dr Lukaszewicz. In Secretary, Department of Social Security and Barbara Wills [1998] AATA 400, it was found that what was intended by the legislature as eligible medical treatment requires a diagnosis and treatment plan formulated by a qualified medical practitioner and conducted under his or her oversight, including some kind of review. Similarly in Osmani, SM Fice found there should be some direction for the treatment from a qualified medical practitioner. Mr Jaskulski’s conditions and the treatment he received are conventional medical treatments and it is apparent that he is accessing these and similar services locally when he is able to. However, there is no evidence before the Tribunal that indicates the treatment he sought in Poland was part of a treatment plan formulated or overseen by his doctor.
I accept that Mr Jaskulski travelled to Poland with the primary intention of seeking medical treatment. Though no documentary evidence is provided, newstart allowance was his only source of income at the time. Consequently I do not dispute that Mr Jaskulski was unable to afford to access certain treatments including physiotherapy and dental work in Australia. Similarly, it is accepted by the Tribunal that Mr Jaskulski was able to access and receive those treatments in Poland and that he was able to travel to Poland with the financial assistance of family members based in Poland. I also accept his claim that directing the money he used for travel to Poland to access locally available medical services in Australia was not an option which was provided by his benefactor.
However, Mr Jaskulski does not meet the criteria set out in the Guide as the treatments he sought are readily available in Australia. Whilst Mr Jaskulski argues that the medical treatments sought were not available to him, it is the case that they were available to him through Medicare, but with restrictions placed on the regularity of treatments accessible at no cost. In considering both of these factors, it is not accepted by the Tribunal that the medical treatment Mr Jaskulski received whilst in Poland was eligible medical treatment.
CONCLUSION
Mr Jaskulski sought to take charge of his health conditions, some of which clearly cause considerable discomfort. Understandably, when he was afforded an opportunity to seek treatment he did so. It is apparent that the primary focus of his time in Poland was his medical appointments and treatment so his expectation that it was an allowable absence is reasonable. However, the treatment Mr Jaskulski received does not meet the requirements of section 1217 of the Act and consequently newstart allowance was not payable whilst he was outside Australia.
DECISION
For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of

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Associate
Dated: 20 August 2020

Date(s) of hearing: 10 June 2020

Applicant: By Microsoft Teams

Solicitors for the Respondent: Ms B Salaji

Date(s) of hearing:	10 June 2020
Applicant:	By Microsoft Teams
Solicitors for the Respondent:	Ms B Salaji