Lesic and Secretary, Department of Family and Community Services - [2002] AATA 651

DECISION AND REASONS FOR DECISION [2002] AATA 651

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/204

GENERAL ADMINISTRATIVE DIVISION       )
           Re      IVAN LESIC
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date9 July 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd).................
Ms J Cowdroy
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – overpayment - whether allowance payable whilst recipient overseas – whether administrative error was solely responsible for the debt – whether special circumstances exist to warrant the waiver of the debt
Social Security Act 1991

WRITTEN REASONS FOR ORAL DECISION

2 August 2002 Ms J Cowdroy, Member

This is an application for review of a decision of the Social Security Appeals Tribunal, dated 23 January 2002 which decided to affirm a decision of Centrelink to raise and recover a debt of Newstart allowance in a sum of $1,894.62.
The applicant appeared at the hearing and gave evidence. Mr N Foster represented the respondent Department.
In summary, Mr Lesic's evidence was that he left Australia on 31 May 2001 and travelled to the United Kingdom and Croatia. He returned to Australia on 26 October 2001 and the trip was planned a few weeks prior to March of that year.
Prior to leaving for overseas, namely on 19 March 2001, he inquired of a Centrelink officer if he would continue to receive Newstart allowance whilst he was overseas. A note to that effect appears at folio 35 of the T documents. At that time, he also advised Centrelink that one of the purposes for his trip overseas was to seek medical treatment. Mr Lesic travelled to the United Kingdom with his wife for the purposes of taking his father-in-law's ashes to that country. He gave evidence of a very close relationship with his father-in-law who had died in June of the year 2000.
He left the United Kingdom and arrived in Croatia about 21 June 2001. In the ensuing four months in Croatia, he had a consultation with his family doctor about a skin condition which he had been told in Australia was genetic in nature and for which there was no cure. He had had the skin condition since at least 1979. Prior to leaving for overseas, the applicant had contacted that doctor and had sent him photographs of his skin condition. The doctor responded by saying that he needed to see the applicant before he could assist. The local medical officer in Croatia subsequently saw the applicant and referred him to a specialist. He had to wait several months for an appointment and he was prescribes cream and an injection. He did not know whether such preparations were available in Australia, although he had been prescribed various types of cream by practitioners in Australia. He referred also to two sessions of laser treatment in Australia, neither of which had reduced the symptoms.
The specialist in Croatia told the applicant that he had two skin conditions. One could be cured and one could not. He said that he still has a skin condition. However, the symptoms are less severe. He was not advised by the specialist in Croatia that there was a cure. The specialist carried out a biopsy and provided a written report which has been translated into English. Essentially, it confirms that the applicant has a skin condition.
In respect to the trip to the United Kingdom, it was planned so as to least interfere with his wife's studies.
Mr Foster, for the respondent, contended that the reasons for the trip to the United Kingdom and Croatia did not entitle him to be paid Newstart allowance whilst overseas. When a person is in receipt of Newstart allowance, the portability of that pension is available for 26 weeks, provided certain requirements are met. In the present matter, the Tribunal was required to consider two criteria: whether the absence was for the purpose of seeking eligible medical treatment and/or whether it was to attend to an acute family crisis.
As I understand the applicant's evidence, he contends that the trip to the United Kingdom constitutes an acute family crisis. However, it is clear that the definition of acute family crisis relates to critical family events which are unexpected and are of such urgency that they require immediate action or attention. Although the Tribunal accepts that the taking of the ashes to the United Kingdom was a significant family event, it cannot constitute an acute family crisis when one reads section 1212A of the Act in its entirety.
In respect to the trip to Croatia, the applicant admitted quite frankly that he was not sure what kind of treatment might be offered to him. One of the things that concerned him was that he wanted to find out whether the condition was genetic and he was told by his local doctor, who had treated his family members, that no one else in the family suffered from such a condition. There was no evidence before me that the treatment he was given in Croatia was treatment that was not available in Australia.
It is clear from the definition of eligible medical treatment that it is meant to encompass the situation where specific treatment can be offered overseas. For example, surgery which is more commonly performed overseas but is still in its infancy in Australia - and a type of transplant springs to mind - might be a situation which qualifies as eligible medical treatment. However, the applicant chose to obtain a further medical opinion, which was his right, because he was not satisfied with the treatment he was getting in Australia. The Tribunal accepts that was the case, however, that does not constitute eligible medical treatment within the terms of the Act.
During his evidence, the applicant made much about the fact that Centrelink had given him wrong advice. He had provided information to the effect he was going overseas and there is no dispute about that. However, even if the correct information had been given by Centrelink he still has to bring his circumstances within the above two criteria for Newstart allowance to continue.
Consequently, I find there is a debt and that it is recoverable. There are two provisions which I must now consider. The first is that relating to waiver under section 123(7)(a) of the Act. In order for waiver to occur one of the things that must be demonstrated is sole administrative error by the Department.
It is clear that the respondent was in error in paying the applicant Newstart allowance whilst he was overseas particularly as he had told them that he was leaving. However, that error was compounded by the applicant's failure to correctly complete the document dated 26 June 2001, which, as it turns out, was completed prior to him going overseas. I find, therefore, that the overpayment was not caused solely by administrative error.
In regards to the issue of good faith, Mr Lesic's evidence during the hearing was that he was not 100 per cent sure whether he would get it. Mr Lesic also drew to the Tribunal's attention the fact that his wife made the comment to a Centrelink officer that they did not expect to receive the full payment and I accept that this was most likely the case. However, that makes no difference to the outcome of the case as the applicant cannot meet the first hurdle, namely, that the debt was caused solely by administrative error.
The other section which I must consider is section 123(7)(a)(a)(d) which relates to special circumstances. That term has been interpreted to describe circumstances which are unusual, uncommon or exceptional. There was no evidence before me that such circumstances exist.
In making the above findings I make the comment that I accept the applicant's evidence, however, this matter does not hinge solely on whether the applicant informed the Department he was going overseas. He did that and that is not in dispute. What he has failed to do, however, is to satisfy the Tribunal that the purpose for going overseas falls within the permissible reasons which would allow him to receive Newstart allowance whilst overseas.
I, therefore, affirm the decision under review.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing and Decision     9 July 2002
Date of Written Reasons             2 August 2002
The Applicant Appeared In Person
Solicitor for the Respondent        Mr N Foster, Departmental Advocate