Ladislava Barta and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 950
•17 October 2011
[2011] AATA 950
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1266
Re
Ladislava Barta
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member JF Toohey
Date 17 October 2011 Date of written reasons 25 January 2012 Place Sydney For reasons given orally at the hearing on 17 October 2011, the decision under review is affirmed.
..................[sgd]......................................................
Senior Member JF Toohey
CATCHWORDS - SOCIAL SECURITY – disability support pension – portability – whether applicant’s portability period should be extended while overseas – whether applicant unable to return to Australia – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Cases
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 cited in Khan and Secretary FaHCSIA [2011] AATA 608
Secondary Materials
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REASONS FOR DECISION
Senior Member JF Toohey
25 January 2012
On 17 October 2011, the Tribunal affirmed a decision of the Social Security Appeals Tribunal (SSAT) not to extend the portability period of Mrs Ladislav Barta’s disability support pension (DSP) while she was overseas.
The Tribunal gave its reasons at the conclusion of the hearing. Mrs Barta has requested written reasons. These reasons reflect those given at the hearing.
Background
Mrs Barta was granted a DSP in January 1985. In 1997, she returned to the Czech Republic, where she was born, to care for her mother. She came back to Australia in February 2004. In October 2006, she returned to the Czech Republic to care for her mother and stayed there until March 2010.
On 5 January 2007, Centrelink cancelled Mrs Barta’s DSP because she had been overseas for more than 13 weeks which was the maximum period (the “portability period”) for which she was entitled to payment while overseas unless she came within one of the exceptions in the Social Security Act1991 (the Act).
Other than in November 1995 and July 2004, when payment was cancelled or suspended for reasons which do not matter here, Mrs Barta received a DSP continuously from 1985 until payment was cancelled in January 2007. This included from 1997 to 2004 while she was in the Czech Republic.
There have been a number of changes to the Act over time concerning portability periods. Briefly, in November 1991, a 12-month limit was imposed on certain DSPs; those granted before November 1991 were subject to different rules. From September 2000, generally there was a 26-week portability period for temporary absences and, subject to certain requirements, indefinite portability for permanent absences. In July 2004, the portability period for temporary absences was reduced to 13 weeks for most pensions including the DSP. Mrs Barta clearly finds the legislation and the present proceedings confusing and she has difficulty understanding why she should not be paid during her recent absence as she was from 1997 to 2004.
The present application
In February 2006, Mrs Barta notified Centrelink that she planned to go to the Czech Republic permanently. She asked for her payment to continue beyond 13 weeks on the ground that she was terminally ill. In support of her request, Mrs Barta submitted several medical reports from her treating psychiatrist, Dr Peter Stepan, which confirmed that she suffers from chronic anxiety, panic disorder, intermittent recurrent depression, alcohol dependence and “various physical complaints”. In a report dated 3 April 2006, Dr Stepan stated that she was “severely disabled”; she was suffering with acute anxiety and feared she might have cancer or might die soon, and wanted to visit her mother in the Czech Republic for eight to twelve months.
Centrelink was not satisfied that Mrs Barta was terminally ill and decided she was not entitled to payment beyond 13 weeks. The SSAT affirmed the decision and, on 18 October 2006, this Tribunal, differently constituted, affirmed the SSAT decision.
In the meantime, on 25 September 2006, Mrs Barta notified Centrelink that she planned to leave Australia on for the Czech Republic on 6 October 2006. She left on 6 October 2006. On 6 December 2006, she contacted Centrelink to say she had suffered a serious illness while overseas and was too unwell to return to Australia. She asked for her portability period to be extended beyond 13 weeks. Centrelink rejected her application and, on 5 January 2007 cancelled her DSP.
Mrs Barta returned to Australia on 4 March 2010. She applied for a DSP but was refused for reasons which do not presently matter. She was eventually granted a DSP with effect from 24 March 2010. She seeks review of the decision to grant her DSP from that date, claiming payment should be backdated to 5 January 2007.
Can the Tribunal review the decision?
Section 33 of the Administrative Appeals Tribunal Act1975 gives the Tribunal broad power to decide how to conduct itself, including the power to refuse to allow a matter to be re-litigated (see Re Quinn and Australian Postal Corporation (1992) 15 AAR 519; Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374, cited in Khan and Secretary FaHCSIA [2011] AATA 608).
The respondent contends that the Tribunal dealt with the subject matter of Mrs Barta’s present application in its decision on 18 October 2006 and that it should decline to deal with that matter again. Ordinarily, I would agree. However, taking into account Mrs Barta’s psychiatric condition, that her applications have to some extent overlapped and she is clearly confused by the various proceedings and distressed about her payment, and that she seeks back payment for a longer period than that already considered, I am satisfied that the Tribunal should make a determination and give her reasons.
Should Mrs Barta’s portability period be extended?
If a person is severely disabled and terminally ill, and her absence is, or will be, permanent, and she satisfies all other qualifying circumstances, the maximum portability period for her DSP may be extended indefinitely: s 1218 AA(1).
“Severely disabled” means that a person is totally unable to work for at least two years and unable to benefit within two years form training or rehabilitation: s 23 (4B). Although Dr Stepan’s report of 3 April 2006 stated that Mrs Barta was “severely disabled”, he did not specifically deal with whether or not she was able to work. Even if she was “seriously disabled”, there is nothing in any medical report to suggest that Mrs Barta is, or was, terminally ill, and nothing in Dr Stepan’s report of 3 April 2006 indicates any basis to her fear that she had cancer and might die soon. Moreover, at the hearing of this application, Mrs Barta said she does not have, and has never claimed to have, a terminal illness; that is her way of explaining how seriously ill she is.
The evidence about whether Mrs Barta planned to leave Australia permanently in 2006 is not clear. Although she apparently told Centrelink in February 2006 that she wanted to leave permanently, according to Dr Stepan’s report of 3 April 2006, she planned to visit her mother for eight to twelve months. A copy of her return air ticket suggests that Dr Stepan’s understanding was correct. Regardless, she could not be granted payment indefinitely because she did not satisfy other essential qualifying circumstances.
Section 1218 C of the Act provides that the maximum portability period may be extended if the Secretary is satisfied that a person is unable to return to Australia because of any one of a number of events their own serious illness or hospitalisation, or the serious illness or hospitalisation of a family member. The Secretary must not extend the period under this provision unless the event occurred or began during the period of absence: s 1218C (1), (2).
Mrs Barta’s claim that a serious illness prevented her from returning to Australia is not entirely clear. Reports from her doctors show that she has a history of heart disease, hypertension, gastro-oesophageal reflux disease, hypo-thyroidism, hyper-cholesteraemia and back pain, as well has her psychiatric condition. However, there is no evidence that any of her conditions prevented her from returning to Australia within 13 weeks.
Mrs Barta told the Tribunal that she has been sick since 1985 and is getting steadily worse. She is seriously ill, she cannot work and she needs support. She came back to Australia in March 2010 because she had no money and no support and could not stay in the Czech Republic any longer. She also had to come back to care for her son who is homeless and has schizophrenia. She does not see why any changes in the legislation should apply to someone who has been receiving the DSP since 1985.
Mr Barta spoke in support of his wife’s application. He said when she went to the Czech Republic in October 2006, she only intended to stay for 13 weeks but she became ill. Mrs Barta appeared to contradict his statement, saying she has been seriously ill for many years. In any event, the evidence suggests that he is not correct.
The evidence shows that:
(i)Mrs Barta had long-standing illnesses before she left Australia in October 2006;
(ii)there is no evidence that any of her conditions worsened or changed in any way while she was overseas;
(iii)there is no evidence that any of her conditions prevented her from returning to Australia within 13 weeks;
(iv)before she left, she planned to stay away for at least eight months;
(v)her flight itinerary shows that she was to leave Australia on 6 October 2006 and return on 3 September 2007;
(vi)Mrs Barta’s mother had been ill for some time and there is no evidence that her condition worsened while Mrs Barta was overseas and prevented her from returning within 13 weeks.
Mrs Barta told the Tribunal that she had other medical documents which supported her claim and which she had given to Centrelink. She could not remember what they were but she was certain she had given them to Centrelink. Centrelink has no record of receiving those documents.
Conclusion
There is no question that Mrs Barta has a number of serious medical conditions. However, none of her conditions was, or is, a terminal illness and, even if it were, she would not qualify for an indefinite extension of the maximum portability period because she does not satisfy other conditions for an indefinite extension.
I am not satisfied, on the evidence, that Mrs Barta was prevented by her own serious illness or hospitalisation, or by her mother’s serious illness or hospitalisation, from returning to Australia within 13 weeks of her departure on 6 October 2007.
I appreciate that it is difficult for Mrs Barta to understand the changes in the law concerning portability periods as they have affected her pension. However, I am satisfied that there is no ground on which her DSP portability period could be extended.
I affirm the decision under review.
I certify that the preceding 25 paragraphs are a true copy of the reasons for the decision herein of Senior Member JF Toohey. ...........[sgd].............................................................
Associate
Date of hearing 17 October 2011 Applicant In person Solicitors for the Respondent Phyllis Lee
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