Linck and Secretary, Department of Social Services (Social services second review)
[2022] AATA 2480
•31 March 2022
Linck and Secretary, Department of Social Services (Social services second review) [2022] AATA 2480 (31 March 2022)
Division:GENERAL DIVISION
File Number(s): 2020/5046
Re:Simon Linck
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndArnold Linck
OTHER PARTY
Decision
Tribunal:Administrative Appeals Tribunal
Date:31 March 2022
Place:Canberra
The Tribunal has jurisdiction to determine the Applicant’s entitlement to DSP during the periods:
(a)7 May 2019 to 21 May 2019;
(b)16 June 2019 to 8 July 2019;
(c)25 August 2019 to 8 September 2019; and
(d)27 October 2019 to 25 November 2019.
The decision under review is set aside and, in substitution thereof, the Tribunal decides:
(a)in each of the periods specified in [1] above, the Applicant was absent from Australia for the purposes of seeking eligible medical treatment as defined in s 1212 of the Social Security Act;
(b)in accordance with item 2AA of the table in s 1217 of the Social Security Act, the periods specified in [1] are allowable absences for the purposes of s 1217(2) of that Act; and
(c)the Applicant was entitled to be paid DSP during the following periods in which his DSP was suspended:
(i)1 July 2019 to 8 July 2019;
(ii)25 August 2019 to 8 September 2019; and
(iii)27 October 2019 to 25 November 2019;
(d)the amount of DSP that was payable to the Applicant in respect of these periods is an amount that is payable to a person for the purposes of s 58(1)(a) of the Social Security (Administration) Act 1999 (Administration Act).
The matter is remitted to the Secretary to calculate the amount that may be payable to another person under s 58 of the Administration Act.
…………….[sgd]…………….
Mr S. Webb, Member
Catchwords
SOCIAL SERVICES – Disability Support Pension – suspension - entitlement to payments during periods of absence from Australia – eligible medical treatment – death of Applicant – entitlement to payment – decision remitted
Legislation
Social Security Act 1991, s 1212, 1217Cases
Linck and Secretary, Department of Social Services [2021] AATA 3298
REASONS FOR DECISION
Mr S. Webb, Member
31 March 2022
The Applicant suffered from a terminal condition for which he sought medical treatment in Germany during the following periods in 2019:
(a)7 May 2019 to 21 May 2019;
(b)16 June 2019 to 8 July 2019;
(c)25 August 2019 to 8 September 2019; and
(d)27 October 2019 to 25 November 2019.
The Respondent decided the medical treatment the Applicant obtained in Germany was not eligible medical treatment for the purposes of s 1212 and s 1217 of the Social Security Act 1991 (Social Security Act) and suspended his Disability Support Pension (DSP) during the following periods in which he was absent from Australia:
(a)1 July 2019 to 8 July 2019;
(b)25 August 2019 to 8 September 2019; and
(c)27 October 2019 to 25 November 2019.
On 2 October 2019, the Applicant initially requested review of DSP suspension decisions in respect of 7 May 2019 to 21 May 2019, 16 June 2019 to 8 July 2019 and 25 August 2019 to 8 September 2019. He followed up the request on 18 October 2019, 3 November 2019 and 13 November 2019.
On 9 January 2020, a review was conducted by an Authorised Review Officer (ARO). The ARO affirmed the suspension decision in the period from 25 August 2019 to 8 September 2019 but did not address with other periods in which the Applicant’s DSP had been suspended.
The Applicant applied for review by the Tribunal in its Social Services and Child Support Division (AAT first review). In the result, the Tribunal affirmed the decision.
The Applicant applied for review by the Tribunal in its General Division (AAT second review).
In the course of the Tribunal proceedings, the Applicant died.
Thereafter, on 14 September 2021, the Tribunal issued a decision in respect of its jurisdiction: Linck and Secretary, Department of Social Services [2021] AATA 3298.
On 16 November 2021, Mr Arnold Linck, the Applicant’s father, was joined as a party to the proceedings.
On 14 December 2021, Mr Linck provided written submissions in which he consented to the Tribunal deciding the application on the materials before it and stated:
On 28 March 2022, the Respondent requested a directions hearing and informed the Tribunal:
(d)the Secretary accepted the Applicant was absent from Australia for the purpose of seeking eligible medical treatment in each of the periods 16 June 2019 to 8 July 2019, 25 August 2019 to 8 September 2019 and 27 October 2019 to 25 November 2019; and
(e)Mr Linck had been given a letter from the Secretary and an offer of settlement.
On 31 March 2022, I heard from Mr Linck and the legal representative for the Respondent in a telephone directions hearing.
Mr Linck reiterated issues of concern raised in written submissions dated 14 December 2021. In particular, he is concerned about procedures within the Secretary’s Department relating to the timeliness of decisions, the thoroughness of investigations, the impartiality of decision-makers and the accuracy of records. I explained to Mr Linck that such matters are beyond the scope of the Tribunal’s review and, while in some cases the Tribunal may comment on procedural matters, the Tribunal’s role is to make the correct or preferable decision on the relevant materials rather than to identify errors in previous decisions.
In consideration of the submissions of the parties and the unfortunate circumstances of this case, noting there is substantial agreement between Mr Linck and the Respondent about the matters to be determined by the Tribunal, it is appropriate for the Tribunal to make the following decision under s 43 of the Administrative Appeals Tribunal Act 1975 without any further hearing.
On review of the relevant materials, the Tribunal agrees with the Secretary’s concessions and finds the Applicant was absent from Australia during the periods specified in [1] for the purposes of obtaining eligible medical treatment under s 1212 of the Social Security Act.
Decision
The Tribunal has jurisdiction to determine the Applicant’s entitlement to DSP during the periods:
(a)7 May 2019 to 21 May 2019;
(b)16 June 2019 to 8 July 2019;
(c)25 August 2019 to 8 September 2019; and
(d)27 October 2019 to 25 November 2019.
The decision under review is set aside and, in substitution thereof, the Tribunal decides:
(a)in each of the periods specified in [1] above, the Applicant was absent from Australia for the purposes of seeking eligible medical treatment as defined in s 1212 of the Social Security Act;
(b)in accordance with item 2AA of the table in s 1217 of the Social Security Act, the periods specified in [1] are allowable absences for the purposes of s 1217(2) of that Act; and
(c)the Applicant was entitled to be paid DSP during the following periods in which his DSP was suspended:
(iv)1 July 2019 to 8 July 2019;
(v)25 August 2019 to 8 September 2019; and
(vi)27 October 2019 to 25 November 2019;
(d)the amount of DSP that was payable to the Applicant in respect of these periods is an amount that is payable to a person for the purposes of s 58(1)(a) of the Social Security (Administration) Act 1999 (Administration Act).
The matter is remitted to the Secretary to calculate the amount that may be payable to another person under s 58 of the Administration Act.
…………….[sgd]…………….
Mr S. Webb, Member
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