LABRIK OSMANI and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 605
•16 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 605
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0072
GENERAL ADMINISTRATION DIVISION ) Re LABRIK OSMANI Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr Egon Fice, Senior Member Date16 August 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review. ..........(sgd) Egon Fice.............
Senior Member
SOCIAL SECURITY – Newstart Allowance - Centrelink - portability period - medical treatment - medical treatment not available in Australia – eligible medical treatment
Social Security Act 1991 ss 1212, 1217, 1217(2), 1217(4)
Secretary’s Guide to Social Security Law
Port of Brisbane Corporation v Commissioner of Taxation (2004) 140 FCR 375
REASONS FOR DECISION
16 August 2010 Mr Egon Fice, Senior Member 1. Mr Labrik Osmani was receiving Newstart Allowance (NSA). He departed Australia on 2 July 2009, to access long term drug and alcohol residential rehabilitation in Croatia. Mr Osmani was admitted to the Cenacolo Community Centre on 8 September 2009. He returned to Australia in March 2010.
2. Centrelink ceased to pay Mr Osmani the NSA while he was outside Australia because he did not satisfy the provisions in the Social Security Act 1991 (the Act) regarding portability of Social Security payments. In particular, a delegate from Centrelink decided that Mr Osmani’s temporary absence was not for the purpose of seeking eligible medical treatment as that expression is defined in s 1212 of the Act. Mr Osmani sought review of the delegate’s decision by an Authorised Review Officer (ARO). On 17 July 2009 the ARO affirmed the delegate’s decision.
3. Mr Osmani sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 21 December 2009 the SSAT affirmed the ARO’s decision. Mr Osmani now seeks a review of the SSAT decision by this Tribunal.
4. The only issue which I am required to determine is whether Mr Osmani’s temporary absence from Australia was for the purpose of seeking eligible medical treatment.
MR OSMANI’S MEDICAL PROBLEM
5. Mrs Sazana Osmani, who appeared on behalf of her son, said he suffered from mood disorders and depression triggered by substance abuse. She said her son was being treated with Olanzapine and Fluoxetine. In a letter dated 22 September 2008, Dr K P Saratchandran stated that Mr Osmani suffered from the combined problems of bipolar disorder and substance abuse. He described Mr Osmani as being in need of urgent inpatient detox management for substance abuse.
6. In a letter dated 10 June 2009, Dr Bernard Hickey, a Psychiatrist, said that he interviewed Mr Osmani on 11 March 2009. Dr Hickey also interviewed Mr Osmani’s parents. They told him that Mr Osmani appeared to be a gifted child musically and behaved normally until the end of primary school, when he began to have behavioural problems. He started smoking marijuana at age 15 and was an occasional user of that drug by age 17. His function deteriorated and his moods became unstable. Mr Osmani became isolated and aggressive as well as exhibiting some psychotic symptoms at times, including passivity phenomena and abnormalities of thought possession.
7. Dr Hickey stated that Mr Osmani needed to be abstinent from alcohol and drugs of abuse. He noted that Mr Osmani was reluctant to participate in further drug rehabilitation treatment at that point in time. He encouraged Mr Osmani to consider it when he was feeling more relaxed and sociable. Dr Hickey prescribed Olanzapine and Fluoxetine. Dr Hickey mentioned that Mr Osmani intended to spend up to six months with his parents in Croatia and while there, he would attend a rehabilitation facility. He provided him with a six month supply of his medication.
PORTABILITY OF SOCIAL SECURITY PAYMENTS
8. NSA is a Social Security payment that has a limited portability period. The maximum portability period for NSA is 13 weeks. This is set out in the Table at the end of s 1217 of the Act. However, payment during the maximum portability period is qualified by s 1217(2) of the Act. It provides that a person’s absence is an allowable absence in relation to the payment at a particular time if:
(a) it is an absence specified in column 4 (of the table) in respect of the allowance being paid; and
(b) the absence does not exceed the period specified in column 5.
9. Column 4 of the Table at the end of s 1217 in respect of the NSA provides:
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.
Column 5 of the Table at the end of s 1217 in respect of the NSA specifies 13 weeks. Therefore, the absence must have been for the purpose of seeking eligible medical treatment (as is claimed in this case) or attending to an acute family crisis or for a humanitarian purpose. In addition, the absence must not exceed the specified period, being 13 weeks.
10. Section 1217(4) provides that a person’s portability is the period which begins at the commencement of the period of absence and ends at the first time during the period of absence, when the absence ceases to be an allowable absence or, at the end of the period of weeks stated to be the maximum portability period for the payment.
Eligible Medical Treatment
11. The expression eligible medical treatment is defined in s 1212 as follows:
eligible medical treatment, in relation to a person, means medical treatment of a kind that is not available to the person in Australia.
12. The expression medical treatment is not defined in the Act. The adjective, medical, is defined in the Shorter Oxford English Dictionary as: 1. pertaining to the healing art or its Professors; also, pertaining to “medicine”, as dist. from obstetrics, surgery, etc. There seems to be no good reason why the broad definition should not be used in the context in which it appears in the Act. In other words, any treatment which promotes healing of a medical illness, whether that be physical or psychological.
13. As the New South Wales Law Reform Commission (LRC) noted in its issues paper 24 (2004), the expression medical treatment is difficult to define. The paper noted that the word medical normally connotes the involvement of a medical practitioner, or other paramedical professional, such as a nurse, in the performance of orthodox, mainstream medical procedures. The LRC accepted that this understanding of the term medical is a narrow view. It said that there are now a large number of widely accepted alternative health services which do not fall within the notion of medical services as traditionally understood. Nevertheless, these alternative health services aim to benefit a person’s health and wellbeing. Amongst those services, the LRC cited physiotherapists, psychologists and nutritionists, who would not normally be considered to fall within the notion of medical treatment. The LRC suggested that a broader definition could be adopted, widening the terms of reference beyond services that are strictly termed medical.
14. The LRC also focused on the word treatment in the phrase medical treatment. It said this word was also open to a number of interpretations including physical and non physical contact, such as counselling, advice or the provision of information. The LRC concluded that there was not any obvious way in which to define the phrase, medical treatment. It suggested public discussion and consultation about a wider meaning.
Mr Osmani’s Treatment
15. Mrs Osmani gave a detailed account of her attempts to obtain appropriate medical treatment for her son. She testified that in about September 2008 Dr Saratchandran referred Mr Osmani to Dr Wijensinghe, a psychiatrist. He was treated with medication and he consulted with Dr Wijensinghe regularly, sometimes two times per month.
16. Mrs Osmani then decided to take her son to Mr Kirk Austin, who was then a Family Clinician in the Family Eclipse Program. Mrs Osmani said that she believed Mr Austin had a better understanding of her son’s problems and how to deal with them. He was also prepared to visit her son at home. Mr Osmani attended the rehabilitation program provided by Odyssey House in Richmond.
17. After several months of family counselling, Mr Osmani was deemed to be unsuitable for the Odyssey House program because of the complexity of his conditions. Mr Austin left Odyssey House and in a note provided to Mrs Osmani, he set out a number of possible treatment options for her son. They included an organisation called Headspace which was situated at Sunshine. Mr Austin also suggested Narcotics Anonymous, Isis Primary Care/Voyager Program and the Raymond Hader Clinic.
18. Mrs Osmani said that arrangements were made for her son to attend Narcotics Anonymous. On the evening before his attendance, her daughter searched the internet regarding Narcotics Anonymous and discovered that it was operated by Scientologists who, in her opinion, used extreme methods. She therefore decided that her son should not attend that program. Mrs Osmani also said that Isis Primary Care was an adhoc arrangement and could not help him. It was apparently more suitable for short term drug withdrawal therapies which her son did not require. It did not provide ongoing counselling.
19. Mrs Osmani also said that other public treatment centres had lengthy waiting lists or were unsuitable because they only provide peer to peer assistance and programs which were not medically supervised. She said she did investigate the Raymond Hader Clinic but discovered that it was part of the criminal justice system and was not suitable for treating her son.
20. Mrs Osmani testified that she attempted to secure a place in rehabilitation centres in the private sector. She considered a private therapeutic community at Byron Bay, but as the cost was in excess of $100,000, she and her husband were unable to find funds to pay for that treatment. Mrs Osmani testified that she and her husband applied for and obtained a release of their superannuation funds on compassionate grounds. They had used those funds for her son’s treatment at the Raymond Hader Clinic at Bacchus Marsh. However, after some weeks of treatment, it became financially impossible for them to continue.
21. In her oral evidence, Mrs Osmani also said that she had been in touch with the Footscray Hospital, Sunshine Hospital and the Psychiatric Clinic at the Moreland Medical Centre. They were not suitable as they could not assist her son or the waiting period was far too long.
22. It was only after exhausting all of the avenues referred to above, that Mrs Osmani took the advice of a relative and investigated the possibility of sending her son to a charitable organisation, the Cenacolo Community Centre, which is run by Catholic nuns in Croatia. According to the literature Mrs Osmani produced at the hearing, the Cenacolo Community Centre had been extremely successful in assisting its patients freeing themselves from addiction to drugs. Mrs Osmani also confirmed that the Centre was staffed by Psychiatrists, a Counsellor and a General Practitioner. While those medical practitioners were not on the premises, they were nearby and available if required.
23. According to Mrs Osmani, persons admitted to Cenacolo Community Centre were put to work during the day, every day, actively managing their work schedules. She said that her son’s stay at the Cenacolo Community Centre was beneficial and at present, her son continues to see Dr Hickey, approximately on a monthly basis.
24. It appears that Mr Osmani’s NSA was restored on 12 March 2010.
Did Mr Osmani Receive Medical Treatment?
25. The first issue which I see as arising is whether the treatment received by Mr Osmani while in Croatia can be described as medical treatment. On a narrow view of the meaning of the expression medical treatment, the evidence does not indicate that Mr Osmani received that treatment under the supervision of a legally qualified medical practitioner while in Croatia. Mrs Osmani’s evidence was that her son had access to a Psychiatrist, a Counsellor and a General Practitioner, in the event that those services were required. The treatment itself, as is described in the document provided by Mrs Osmani, is of the following nature:
Thus Cenacolo is not so much a therapeutic community or drug rehab centre, as a school of life with prayer at its heart. The young people are thus put through a kind of intensive spiritual boot camp where they learn to live in a totally new way – to accept a simple lifestyle, and to rediscover the gifts of work, friendship and faith in the word of God, instead of relying on the crutch of drugs to escape from everything that is too painful to deal with.
26. That document also states that one of the key means of healing drug addicts is the role of the guardian angels, or fellow addicts who have been in the program for sometime. They provide 24 hour support for their charges, listening to them, encouraging them, making cups of tea if they wake up in the night troubled or even doing their work for them, if they feel too ill to do it. Clearly, these descriptions do not fit comfortably within the narrow view of the description medical treatment.
27. However, if I were to accept the expanded definition of the expression medical treatment, which includes therapeutic treatment obtained at the direction of a qualified medical practitioner, the treatment Mr Osmani received at the Cenacolo Community Centre might fall within that definition. There was no direct evidence before me from any medical practitioner about the nature of the treatment provided by various drug rehabilitation institutions in Australia. However, the note in evidence provided by Mr Austin gives an indication of the therapeutic nature of the treatment that drug abusers undertake in their attempts to become drug free. In addition to treatment with medication, therapy and counselling is clearly an integral part of the process. As Mr Austin said, Mr Osmani needed to be involved in the recovery process by meeting people that are also trying to stay drug free, who can support him. The process involved developing genuine friendships and relationships to assist the drug user in moving towards a new lifestyle. The therapy also includes continuing to have family support.
28. Dr Hickey made it clear in his letter dated 10 June 2009 that Mr Osmani not only suffers from drug dependence, but that his mental functioning has deteriorated. This is exhibited by unstable mood, isolation and aggression, along with quite a few psychotic symptoms including passivity phenomena and abnormalities of thought possession. He noted that Mr Osmani needed to be abstinent from alcohol and drugs of abuse.
29. In my opinion, the expression medical treatment when applied to the conditions experienced by Mr Osmani, necessarily include therapeutic treatment. In fact, Dr Hickey supported Mr Osmani’s trip to Croatia to attend the Cenacolo Community Centre and he supplied him with six months of medication to assist his rehabilitation attempt. In these circumstances, I find that Mr Osmani’s therapeutic treatment obtained overseas was at the direction of a legally qualified medical practitioner, Dr Hickey. It follows that I accept the treatment Mr Osmani received at the Cenacolo Community Centre is properly described as medical treatment.
Medical Treatment of a Kind Not Available in Australia
30. The more difficult question is whether the medical treatment Mr Osmani obtained at the Cenacolo Community Centre was of a kind that was not available to him in Australia. Mr Tim Noonan, a Centrelink advocate, referred to the Secretary’s Guide to Social Security Law (the Guide) and in particular Instruction 7.1.5.60. That Instruction provides:
A recipient’s overseas absence for the purpose of seeking eligible medical treatment can only be accepted if the treatment is not available in Australia and has been recommended by an Australian doctor. Only overseas treatment that will be provided by recognised medical institution/practitioner should be accepted as eligible medical treatment. …
31. The problem with making use of what is set out in the Guide is that it is Departmental Policy. While Departmental Policy should be considered when dealing with discretionary powers, it cannot be relied upon to assist in interpreting a statute. As the Federal Court of Australia (Moore J) said in Port of Brisbane Corporation v Commissioner of Taxation (2004) 140 FCR 375:
The decision of Re Drake concerned a deportation order under the Migration Act 1958(Cth). The then President of the Tribunal, Brennan J, discussed the role of Ministerial policy in the exercise of the discretionary power to deport. His Honour concluded that while the Tribunal was not bound to apply that policy, it should only depart from it cautiously and sparingly, particularly if Parliament had in fact scrutinised and approved the policy. That case does not suggest (nor does any other case of which I am aware) that guidelines or policy documents which express a view about the scope or meaning of legislation provide a tool or aid in construing the legislation. In the present case the Bulletin was no more than an expression of an opinion about what the relevant legislation meant after the legislation was enacted: see Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241 per Mason CJ and Gaudron J and Irving v Minister for Immigration, Local Government and Ethnic Affairs (1995) 59 FCR 423 at 430. In relying on the material in the way it discussed in the passage quoted above at [11], the Tribunal erred in law. …
32. Where statutory provisions grant the decision maker discretion, the grounds upon which that discretion should be exercised is frequently, and properly, the subject of Ministerial or Departmental guidelines. As Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979)2 ALD 634, unless there are reasons for not applying such policy, then the Tribunal should do so. However, that is significantly different from attempting to use guidelines to interpret the statute. That is impermissible. Therefore, in my opinion, the Secretary’s attempt to narrow the meaning of the expression medical treatment in the Act is impermissible.
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.
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. In fact, Mr Osmani had to undergo assessment for suitability prior to being accepted into the Croatian facility. That appears to have taken a number of months to conclude. For those reasons, I find that the eligible medical treatment Mr Osmani sought in Croatia was available to him in Australia.
CONCLUSION
36. For the reasons I have set out above, I find that Mr Osmani’s absence from Australia from 2 July 2009 until his return to Australia was not a permissible absence for the purpose of portability of the NSA. Therefore, the decision made by the SSAT on 21 December 2009 affirming the ARO’s decision to stop payment of Mr Osmani’s NSA from 2 July 2009 was correct. I affirm that decision.
I certify that the thirty six [36] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior Member
Signed: .......(sgd) Elise Montalto......................
Elise Montalto, AssociateDate of Hearing 25 June 2010
Date of Decision 16 August 2010
Advocate for the Applicant Mrs S. OsmaniAdvocate for the Respondent Mr T. Noonan, Centrelink Legal Services Branch
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