LAPINOJA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 303

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 303

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/5225  

GENERAL ADMINISTRATIVE DIVISION		)                2008/5227
Re		HANNA LAPINOJA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent  

Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And HANNA LAPINOJA

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date28 April 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review, namely the decision of the Social Security Appeals Tribunal dated 7 October 2008.  Accordingly, the stay order dated 18 November 2008 is vacated.

....................[Sgd].............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Failure to notify of overseas travel – Applicant was a severely disabled person – Applicant remained entitled on original grant of pension – No time limits for requesting review – Time limit exists for favourable decision to have effect – Review requested outside that time limit – Pension paid from date review requested.

Social Security Act 1991 (Cth), ss 23(4B), 1220

Social Security Administration Act 1999 (Cth), ss 81, 85, 108, 109, 179(2)

Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995)

Re Secretary, Department of Families, Community Services and Indigenous Affairs and
Walshe (2007) 99 ALD 85

Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639

REASONS FOR DECISION

28 April 2010 M J Carstairs, Senior Member

1. Ms Lapinoja commenced receiving disability support pension in 1999 from Centrelink, which administers pension payments on behalf of the Department.  She left Australia for Finland in 2001, apparently without following the legislative requirement to first advise Centrelink.  Ms Lapinoja was absent from Australia from 12 June 2001 to 13 September 2007.  This absence led Centrelink to make four decisions, which the Social Security Appeals Tribunal (“SSAT”) has now set aside. 

2. The SSAT decisions replacing the original decisions are the subject of this review (by force of s 179(2) of the Social Security (Administration) Act 1999 (“the Administration Act”)). It is therefore helpful to here set out the substance of the Centrelink decisions at first instance, and the decisions which the SSAT substituted for those decisions.

Centrelink decisions	SSAT decisions
To cancel Ms Lapinoja’s disability support pension with effect from 12 December 2001—that is, 26 weeks after she left Australia.	Ms Lapinoja was “severely disabled” as at 12 June 2001 with the consequence that her pension had unlimited portability overseas, in accordance with the law in force at the time she left Australia (that is, there was no requirement to cancel her pension after 26 weeks).
To recover a debt of $1,209.25, being pension that continued to be paid to Ms Lapinoja after the first 26 weeks of her absence from Australia.	There was no debt owed by Ms Lapinoja: her pension had unlimited portability.
To re-commence paying Ms Lapinoja disability support pension from 1 April 2008, when she lodged her new claim, but no earlier.	In a letter from Finland received by Centrelink on 23 June 2005, Ms Lapinoja had requested a review of the cancellation decision.  Her pension should be paid from that earlier date and not 1 April 2008. Ms Lapinoja could not be paid from 30 January 2002 because she had not sought review before 23 June 2005.
To suspend pension from 15 June 2008 when Ms Lapinoja again left Australia, for a period of less than 12 weeks, during which time she intended to undergo medical treatment in Finland.	Subject to further checks that Centrelink might need to undertake, Ms Lapinoja remained entitled to her pension when she left Australia on 15 June 2008.

1. I note here that the decision to cancel Ms Lapinoja’s disability support pension with effect from 12 December 2001 (“the cancellation decision”) was the pivotal matter under review.  Subsequent Centrelink decisions were all premised on the fact of that cancellation.  Centrelink cancelled her pension because she was not considered to be a “severely disabled person”. 

2. Neither Ms Lapinoja nor the Secretary to the Department was content with the SSAT’s decisions on these matters, and each has lodged an application for further review.  On the Secretary’s part, he seeks to have the four original Centrelink decisions restored.  It is a little less clear what Ms Lapinoja now seeks in her appeal.  She acknowledged in her Statement of Facts and Contentions (filed ahead of the hearing) that the effect of the legislative provisions was such as to deny her pension between 2002 and 2005.  That is, she accepts that she cannot be paid for that period now.  In other respects the SSAT decision was in her favour, confirming that she was “a severely disabled person” and that she remained entitled to her pension at the time of her 2001 departure, and accordingly had not incurred a debt. 

3. In the event, I have concluded that the SSAT reached the correct decisions on all the identified matters and, accordingly, that the SSAT decision ought to be affirmed in all respects. I explain my reasons below.  But I will first further delineate the issues.

ISSUES

1. The issues between the parties largely involve the interaction between provisions relating to pensions in the Social Security Act 1991 (“the Act”) and the operation of the Administration Act; specifically, what happens when a long term recipient of disability support pension is absent from Australia, and also what happens when a person delays in seeking review of a Centrelink decision.

2. As I have said, whether Ms Lapinoja was a “severely disabled person” (“Issue 1”) was the central issue at the hearing and the focus of the cancellation decision.  If Ms Lapinoja was “severely disabled” when she departed Australia in June 2001, then there would be no debt (“Issue 2”).  In that circumstance, she could have been paid while out of Australia.  However, whether she could be so paid at any particular time also depended on whether Ms Lapinoja had sought review of the cancellation decision, it having been properly notified to her (“Issue 3”).  The fourth issue, also related to the cancellation decision, arose rather later than the first three issues.  This was in mid 2008, when Ms Lapinoja once again left Australia.  Centrelink decided her pension could not be paid because of amendments to portability provisions (“Issue 4”).

BACKGROUND

1. Ms Lapinoja is of Finnish descent.  She lived in Australia between 1969 and 1975, returned to Australia in 1994 and gained permanent residency in 1997. At the hearing she gave her evidence with the assistance of an interpreter in the Finnish language.  Ms Lapinoja has family living in Finland, including elderly parents and her daughter, who married in 2001.  A number of family issues occasioned her lengthy absence from Australia between 2001 and 2007.  Those personal matters do not affect the application of the legislative provisions, which alone determine the outcome in this case.

2. Ms Lapinoja was paid an Australian pension after she made a claim in 1998.  At the time she was receiving newstart payments, designed for people who are seeking work.  I note Ms Lapinoja has not worked in Australia for any extended period.

3. Ms Lapinoja indicated when claiming Centrelink entitlements that she had “limited” skills speaking and reading English, and “very limited” skills in writing English.[1]  Centrelink forms amongst the filed documents show that as a matter of course Centrelink officers have helped her complete any Centrelink paperwork. 

   [1] T6 at 67.

ISSUE 1: WAS MS LAPINOJA SEVERELY DISABLED?

1. The central question to be addressed was medical.  From her first claim, evidence showed that Ms Lapinoja had suffered from back pain since she was in her thirties and had required major surgery to her back in the 1980s, it seems, a hemi-laminectomy.  A computerised tomography (“CT”) scan of her lumbar spine taken in 1998 revealed advanced degenerative changes and severe loss of height at L5/S1.[2]  A Health Services Australia Medical Adviser to Centrelink at the time of her claim noted that Ms Lapinoja’s range of movement was reduced by 50%, and he described her condition in the following terms:[3]

   Overall Summary and Assessment

   Mrs Lapinoja is [a] 49 year old lady who has worked as a labourer in the past.  She has not worked for the last 4 years and has performed house duties.

   …

   Back pain, with left sided sciatica, (referred pain), which is a permanent and fluctuating condition.

   She experiences constant pain in her lower back with referred pain down her left leg … She has difficulty in completing her daily tasks, like washing, cooking, cleaning and she has difficulty with bending, squatting and kneeling.

   She walks at a slower pace than usual, walks with a mild limp and has some problems on inclines and up and down stairs.

   She can walk about 100 to 200 metres at most, but perseveres with a constant back pain which occurs as a result of this … she had loss of lumbar curvature, there was kyphoscoliosis and her lumbosacral mobility was reduced by 50%.

   …

   I agree with Doctor North’s opinion that this lady is not fit for any type of work, nor is she fit for vocational training or rehabilitation.

   [2] T9 at 123.

   [3] T10 at 135.

2. A neurosurgeon confirmed that Ms Lapinoja’s symptoms justified Centrelink paying her pension.[4]

   [4] T11 at 137.

3. Centrelink decision-makers accordingly granted the pension.  When advised in writing of the grant in 1999, Ms Lapinoja was also told that she must let Centrelink know within 14 days if she was planning to be outside Australia, in which case she needed to obtain a departure certificate.[5]  There was no other notice produced that included such information after the notice in 1999.  By the time Ms Lapinoja came to leave Australia in 2001, there was no requirement for a person to obtain a departure certificate; however there was a continued obligation to advise Centrelink about leaving Australia.  

   [5] T13 at 143.

4. Ms Lapinoja’s pension entitlements were re-examined and confirmed some two years later in a medical review conducted in 2001,[6] where it was recorded that she did not require referral to a Commonwealth medical officer as she was “manifestly eligible” under the Act.[7]

   [6] T16 at 151.

   [7] T72 at 316.

5. The portability provisions for Centrelink payments are to be found at Chapter 4 of the Act. At the time that Ms Lapinoja left Australia in 2001 there was unlimited portability for disability support pension recipients overseas who were “severely disabled” (a term defined in s 23(4B) of the Act). The Act gave 26 weeks’ portability for those who were not “severely disabled”.

6. The SSAT concluded that sufficient evidence existed for a decision-maker to be satisfied that at the time of her departure from Australia in 2001, Ms Lapinoja was a “severely disabled” person.  Centrelink policy requires that such a person, effectively, be unable to work eight hours per week and unable to benefit within the next two years from participation in a rehabilitation or other programme designed to increase work capacity.  I think the SSAT was right, taking into account the medical evidence.

7. The additional medical reports since obtained by Ms Lapinoja confirm the extent of her disability.  Dr K Helenius, a Finnish health physician stated (in a report dated 28 May 2004) that Ms Lapinoja had back surgery in 1983 and reinjured her back in a further fall in 1986.  There was reference to her exacerbated condition after working as a carer in Finland.  She had an episode of her leg giving way, causing her to fall and injure her ankle.  She also experienced increased back pain.[8]  Ms Lapinoja was examined as an outpatient at the Helsinki and Nyland County Health Regions Hospital on 8 March 2005.  Her deteriorated condition was noted, it being observed that her basic movements were difficult and painful and her walk “doddering”.[9] 

   [8] T21 at 157.

   [9] T21 at 159.

8. A report from Jorv Hospital in 2005[10] noted that after the initial surgery to Ms Lapinoja’s back (by the mid and later 1980s), she was found to have sustained some damage that caused her left leg to be “quite crippled”, her right leg being affected to a lesser extent.  This report also observed that she had resumed work but that in 2002 she was unable to continue.  Surgery was ruled out as an option for Ms Lapinoja because nerve roots were attached to scar tissue.  Surgery would be too risky and of doubtful benefit.

   [10] T22 and Exhibit 1.

9. Ms Lapinoja gave evidence at the hearing that while in Finland she had been a personal companion to a paraplegic woman.  This did not entail Ms Lapinoja being involved in many duties, apart from warming the woman’s food prepared in advance by her husband, feeding her, and accompanying her to medical appointments or hydrotherapy.  Ms Lapinoja generally acted as the woman’s companion, reading newspapers to her and moving her wheelchair about as required.  Any heavy lifting was undertaken by the woman’s adult children. Ms Lapinoja had to cease as carer when the woman’s son moved away.  In addition, Ms Lapinoja had sustained further injury to her back and in other respects the work was untenable. 

10. Mr Hamilton submitted that the test for “severe disability” was stricter than the test to qualify for disability support pension.  So much is obvious.  However Mr Hamilton also submitted that Ms Lapinoja should have undergone a medical examination at the time she left Australia in 2001 and that without such an examination no-one could decide with confidence that she met the test at that time. This was especially so, Mr Hamilton continued, taking into account that she carried out the carer’s role when she was in Finland. 

11. However, I accept Ms Lapinoja’s evidence that she undertook only light duties in Finland and that her role was not as demanding as ordinary work.  It was also evident that she was not able to carry out even this work, as she sustained further injury in attempting its limited demands.  The conclusion that Ms Lapinoja was severely disabled at the time of her departure from Australian in 2001 is reinforced by the medical evidence Centrelink compiled when she was medically assessed for resumption of her pension after she returned to Australia in 2008.  A Job Capacity Assessor again concluded, consistently with the medical reports to which I have referred, that were available at the time of Ms Lapinoja’s initial claim, that her chronic pain and lumbar spine disorder meant that she could work no more than up to seven hours per week, and even with “intervention” no higher number of hours would be achieved.[11]  Thus the Centrelink opinions remained the same in 2008 as they were in 1998.  No medical evidence indicates otherwise. 

    [11] T47 at 235-6.

12. The Secretary did not seek any additional medical evidence to support the contrary proposition upon which Mr Hamilton made his submissions.  The medical evidence available shows without question that Ms Lapinoja has a major back condition, of such severity that she meets (and met) the requirements of the definition of being “a severely disabled person”.  Ms Lapinoja’s failure to advise that she was going overseas, hence preventing Centrelink from establishing her status through contemporaneous medical evidence, does not influence the present consideration of whether she was, at the time she left Australia in 2001, severely disabled. 

13. Accordingly, I affirm the SSAT decision that Ms Lapinoja’s pension should not have been cancelled from 12 December 2001. The Act as in force at that time allowed her unlimited portability with respect to her pension.

ISSUE 2: IS THERE A DEBT?

1. It follows that Ms Lapinoja remained entitled to be paid pension even 26 weeks after she departed Australia in 2001.  Thus she does not have a debt for the period from 12 December 2001 to 29 January 2002, the period during which Centrelink continued to pay her pension prior to the cancellation decision. 

2. However, although Ms Lapinoja could have retained her entitlement for the entire time she was overseas, legislative provisions with respect to seeking review of the cancellation decision prevent payment now being made for that period. These provisions are in the Administration Act and govern the date of effect of a decision when people seek review.

ISSUE 3: COULD MS LAPINOJA BE PAID BETWEEN 2002 AND 2005?

1. In 2008 Ms Lapinoja lodged a claim for disability support pension; Centrelink recommenced her payments from the date this claim was lodged, being 1 April 2008.  The SSAT, however, having decided the cancellation decision was wrong, came to a different conclusion about when her payments should recommence. The SSAT decision hinged upon the effect of a letter Ms Lapinoja wrote from Finland that was received by Centrelink on 23 June 2005.

2. Centrelink had advised Ms Lapinoja by letter dated 31 January 2002[12] that her pension would be cancelled because she had been away from Australia for more than 26 weeks, and then advised her by letter dated 4 February 2002[13] that she had incurred a debt.

   [12] T19.

   [13] T20.

3. These letters were sent to a post office box number that Ms Lapinoja had provided as her address for service of Centrelink notices.  This was shown by the Address History[14] produced from the Centrelink data base, which recorded that address as the one provided in February 2001,[15] well before Ms Lapinoja left Australia.  She confirmed this was her mailing address in a telephone call she made to Centrelink from Finland. 

   [14] Exhibit 3.

   [15] T72 at 318.

4. On 31 January 2002, Ms Lapinoja telephoned from Finland to tell Centrelink that she would be remaining in Finland until March 2002, due to suffering back pain.  The Centrelink officer then told her that her pension would not be paid beyond 26 weeks and that she would have an overpayment, which Centrelink would require she repay.[16]

   [16] T72 at 316.

5. The next important event for the question of what payments could now be paid to Ms Lapinoja was referred to in an entry on the Centrelink data base dated 23 June 2005.[17] This entry recorded the receipt of a letter from Ms Lapinoja referring to her disability support pension.  Her enquiry was about “payability of pension whilst in Finland”.  Centrelink apparently forwarded to Ms Lapinoja a written response to the effect that she could not be paid while overseas, and would not be eligible until 2014.  This is as much as we can know from the details recorded about this exchange of letters.  No copy of either letter can now be located.   However Mr Hamilton did not contest that this exchange of letters took place as recorded.    

   [17] T72 at 327.

6. It is important to appreciate that there are no time limits for requesting review under the Administration Act; however, there are strict time limits that apply if an applicant is to take the benefit of the maximum backdating. These time limits depend upon whether a person has been given notice of a decision and, if so, whether they have sought review within 13 weeks.[18] (The main exception is where no notice of the decision has been given.) This is outlined in s 109 of the Administration Act.

   [18]

7. Mr Hamilton submitted that it was open for the Tribunal to treat the exchange of letters in 2005 as a request for review of the decision cancelling Ms Lapinoja’s pension payments.  Clearly that submission is correct.  In Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639, the Tribunal considered whether a telephone call to the Department's general inquiries number to inquire about the rate of investment income maintained by the Department could be taken as an application for review of a decision. The Tribunal said at 643 [14]:

   In the Tribunal's view, the department has a mandate to deal with a wide cross section of the public, many of whom are socially and/or emotionally, intellectually or physically handicapped in some way. When a customer telephones the department and expresses concern about specific matters relating to the calculation of pension entitlements, the tribunal is prepared to apply a very broad definition of the term "application for review".

1. In Re Marsh and also in Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995), the Tribunal pointed to the importance of flexibility in addressing the requirements of an application for review.  In that regard, I agree with the SSAT that the letter from Ms Lapinoja referred to in Centrelink records of 23 June 2005 should be construed as a request for review of the cancellation decision.  In a case such as this, where a person has limited skills in English and has relied on Centrelink for assistance with written materials, the evident purpose of a flexible approach is highlighted. 

2. It follows that the date of Ms Lapinoja’s contact with Centrelink at or about 23 June 2005 is the applicable date of effect, pursuant to s 85 and s 109 of the Administration Act. These provisions were correctly applied by the SSAT once it decided to make the “favourable determination” that Ms Lapinoja’s pension should not have been cancelled from 2001.

3. As the SSAT comprehensively explained in its written reasons,[19] the effect of s 85 read with s 109 of the Administration Act is that Ms Lapinoja’s pension could not be reinstated any earlier than the date at which she requested review. Section 85 of the Administration Act provides as follows:

   [19] T3, paras 24 to 27.

   (1) If:

   (a) a person’s social security payment is cancelled by force of section 93 or 94 or the Secretary cancels or suspends a person's social security payment under section 80, 81 or 82; and

   (b) the Secretary reconsiders the decision; and

   (c) as a result of the reconsideration, the Secretary is satisfied that, because of the decision:

   (i) the person did not receive a social security payment that was payable to the person; or

   (ii) the person is not receiving a social security payment that is payable to the person;

   the Secretary is to determine that the social security payment was or is payable to the person, as the case requires.

4. Section 109 of the Administration Act allows for different dates of effect for a “favourable determination” (s 108) made under s 85. The dates depend on findings about whether the person received notice of the decision under s 81 of the Administration Act, and on whether review was sought within the statutory time frame of 13 weeks. Here, Ms Lapinoja was notified of the cancellation, but did not apply for review until some three years later. In her Statement of Facts and Contentions, Ms Lapinoja agreed that her pension should be payable from June 2005, so it seems that she accepts that the SSAT correctly applied the law in this respect.

5. Accordingly I affirm the SSAT decision in that regard.

ISSUE 4:  SHOULD PENSION HAVE BEEN SUSPENDED IN JUNE 2008?

1. Ms Lapinoja again left Australia for Finland in June 2008. I understand from Mr Hamilton’s filed Statement of Facts and Contentions that Centrelink suspended Ms Lapinoja’s disability support pension on the grounds that s 1220 of the Act required that course of action. Ms Lapinoja had to be treated as a person who had “emigrated to another country”,[20] returned, and who was thereafter required to stay in Australia for two years if she was to retain her ongoing entitlement to Australian pension.  I understand that an authorised review officer confirmed this in a review dated 5 September 2008,[21] although I was not provided with that decision or with a copy of Ms Lapinoja’s appeal from it.  

   [20] T62 at 290.

   [21] As referred to at T3, para 2.

2. Section 1220 of the Act provides:

   (1) If: 

   (a) a person is an Australian resident; and

   (b) the person ceases to be an Australian resident; and

   (c) the person again becomes an Australian resident; and

   (d) within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to: 

   (i) an age pension; or

   (ii) a disability support pension; or

   (iii) a bereavement allowance; and

   (e) after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and

   (f) financial assistance is not payable in respect of the person's absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953; 

   a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.

3. The SSAT correctly decided that Ms Lapinoja had remained entitled on her original grant of disability support pension because she did not come within the ambit of s 1220 of the Act. She was entitled to payment of her pension in 2008 as she was not out of Australia for in excess of 13 weeks.

4. The SSAT couched its decision with respect to this period so as to allow Centrelink to carry out any further investigations relevant to that period and earlier period.  There is no need here to detail their reasons for so doing.  I will simply affirm the SSAT decision, which allows for any follow-up investigation regarding Ms Lapinoja’s assets and income and any other matters relevant to assessing her entitlements throughout the arrears periods. Accordingly, with respect to the fourth issue, I affirm the SSAT decision setting aside the decision affirmed by the authorised review officer on 5 September 2008.

DECISION

1. The Tribunal affirms the decision under review, namely the decision of the Social Security Appeals Tribunal dated 7 October 2008.  

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.

Signed: .........................[Sgd]..............................................
  Mátyás Kochárdy, Associate

Date of Hearing  10 December 2009       
Date of Decision  28 April 2010
The Applicant was assisted by Mr M Makelainen
Interpreter for the Applicant      Ms Marita Quaglio
Advocate for the Respondent   Mr R Hamilton

Re Secretary, Department of Families, Community Services and Indigenous Affairs and
(2007) 99 ALD 85.

Walshe