Loudy Khalel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 110
•24 February 2012
[2012] AATA 110
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3138
Re
Loudy Khalel
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member JF Toohey
Date 24 February 2012 Place Sydney The decision under review is affirmed.
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Senior Member JF Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – portability – decision to refuse extension of portability period on ground of serious illness and hospitalisation – disability support pension cancelled – whether applicant sought review of cancellation within 13 weeks of notification – decision that applicant not Australian resident – decision to cancel disability support pension affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
Senior Member JF Toohey
This matter concerns whether Mrs Loudy Khalel is entitled to continue receiving a disability support pension (DSP) while she is overseas.
A DSP can be paid while a person is overseas but, generally, the maximum “portability period” is 13 weeks. It may be extended if events including serious illness and hospitalisation mean a person is unable to return to Australia.
Mrs Khalel went to Lebanon on 29 November 2009. When she had not returned on 28 February 2010, Centrelink cancelled her DSP. The Social Security Appeals Tribunal (SSAT) later decided her portability period should be extended because her medical condition had prevented her from travelling.
On 26 August 2010, Centrelink decided that Mrs Khalel’s extended portability period had ended and again cancelled her DSP. Mrs Khalel did not seek review of that decision until 25 January 2011. The effect is that she is no longer entitled to receive a DSP and cannot claim a DSP again unless she returns to Australia.
THE ISSUES
Mrs Khalel’s application raises two issues:
(i)when she sought review of the decision to cancel her DSP; and
(ii)whether the decision to cancel her DSP was correct.
BACKGROUND
Mrs Khalel is an Australian citizen. She was granted a DSP in 1984. On 29 November 2009, she left Australia for Lebanon, where she was born. She has not returned and says she cannot do so for medical reasons.
Centrelink records show that, before she left, Mrs Khalel spoke to a Centrelink officer who advised her about the 13-week maximum portability period.
On 16 February 2010, Mrs Khalel contacted Centrelink from Lebanon to say she had a heart condition and could not return by 27 February 2010 when the portability period was due to expire. She asked for the period to be extended. She was advised she should provide a medical certificate in support of her request.
On 28 February 2010, when nothing had been received from Mrs Khalel, Centrelink cancelled her pension.
In March and April 2010, Mrs Khalel sent Centrelink several medical certificates and reports from her doctors in Lebanon concerning her hip and heart conditions. Centrelink was not satisfied that the information in those medical certificates and reports brought her within any of the provisions by which the portability period may be extended and affirmed its decision.
Mrs Khalel asked the SSAT to review Centrelink’s decision.
THE FIRST SSAT DECISION: MRS KHALEL’S PORTABILITY PERIOD EXTENDED
On 11 August 2010, the SSAT found, on the basis of the medical certificates provided by Mrs Khalel, that after she arrived in Lebanon she developed a serious infection of her hip which had prevented her from returning to Australia. The SSAT decided her portability period should be extended until her condition no longer prevented her from travelling.
Following the SSAT’s decision, Centrelink decided to extend Mrs Khalel’s portability period to 25 August 2010. For reasons which are not clear, this decision was not communicated to Mrs Khalel or to her daughter, Nicole Jordan, who lives in Sydney and is her nominee for Centrelink purposes.
THE DECISION TO CANCEL MRS KHALEL’S DSP
On 26 August 2010, Centrelink decided that the extension to Mrs Khalel’s portability period had ended, and suspended her DSP. Again for reasons which are not clear, this decision was not communicated to Mrs Khalel or her daughter until 24 September 2010 when Mrs Khalel contacted Centrelink about her payment.
Two things happened on 24 September 2010 after Mrs Khalel contacted Centrelink.
First, Centrelink sent her a letter advising that her payment had been suspended as of 26 August 2010 pending either her return to Australia or satisfactory evidence of her continuing medical condition. The letter advised that a further extension would require “satisfactory medical evidence confirming you are totally unable to travel to Australia by 25 August 2010”. Mrs Khalel did not provide any further medical evidence to Centrelink.
Centrelink concedes that the letter notifying Mrs Khalel of the suspension did not meet the requirement in section 72 of the Social Security (Administration) Act1999 (SSA Act) that it specify a time within which Mrs Khalel had to provide further medical evidence and that, in this regard, it was defective.
The second thing that happened on 24 September 2010 was that Centrelink sent Mrs Khalel a letter advising that her DSP had been cancelled “because your overseas payment extension has ended”. It appears this letter was automatically generated by computer after the Centrelink officer had decided to suspend payment (see s 6A of the SSA Act by which the Secretary may make a decision by means of a computer program). In any event, I am satisfied that it was a valid notice of the cancellation decision and that its validity was not affected by also sending the suspension notice or by any defect in the suspension notice (see section 80 of the SSA Act). Further, I am satisfied, from Mrs Khalel’s and Ms Jordan’s oral evidence, that they understood that her DSP had been cancelled.
Around this time, there were problems to do with Mrs Khalel’s bank account and it took some time for arrears to be paid after the SSAT had extended her portability period. Centrelink records show that Ms Jordan spoke with Centrelink officers several times between August and November 2010 about the payment of arrears. However, as set out below, there is no evidence that she asked for the cancellation decision to be reviewed until 25 January 2011.
Centrelink records show that Ms Jordan telephoned Centrelink on 25 January 2011 “to request a further [extension]”. The Centrelink record notes that “this is outside 13 week”. Centrelink records also show that Ms Jordan’s telephone call was treated as a request for review of the cancellation decision but “[Authorised review officer] agrees with [cancellation] as no evidence has been provided”.
Also on 25 January 2011, Centrelink determined that Mrs Khalel was not a resident of Australia. It is not clear specifically what prompted this determination. It does not appear to have been communicated to Mrs Khalel until 11 March 2011 when Centrelink sent her a letter stating that it had been determined that she was “not residing in Australia and therefore do[es] not qualify for an Australian Disability Support Pension”.
There was some issue when these proceedings commenced as to whether, and if so when, Ms Jordan asked Centrelink to review its decision that Mrs Khalel was no longer a resident of Australia. Centrelink now agrees that, on 13 April 2011, Ms Jordan asked for the decision to be reviewed but, for reasons which do not matter here, an authorised review officer declined to review the decision. That decision has not been considered by the SSAT and cannot be considered by this tribunal.
WHEN DID MRS KHALEL SEEK REVIEW OF THE DECISION TO CANCEL HER DSP?
If a person seeks review within 13 weeks of being notified by Centrelink that their pension has been cancelled, a favourable decision takes effect from the date of the cancellation. If a person seeks review more than 13 weeks after being notified of a cancellation, a favourable decision takes effect only from the date on which review is sought: section 109 of the SSA Act.
The letter notifying Mrs Khalel that her DSP had been cancelled was sent by prepaid post to her daughter’s address in Sydney which was Mrs Khalel’s postal address for Centrelink purposes. She is deemed to have received it “in the ordinary course of post” unless the contrary of proved: section 237 of the SSA Act. “Ordinary course of post” is not itself defined but it is reasonable to would allow one or two days for delivery within metropolitan Sydney. Allowing a (generous) week for delivery, Mrs Khalel can be taken to have been notified by 1 October 2010 and the 13-week period to have expired at the latest by 31 December 2010.
Mrs Khalel does not herself claim that she asked for the cancellation decision to be reviewed. She gave evidence by telephone from Lebanon that she was not well at the time and was depressed. When she learned that her DSP had been cancelled, she talked to her daughter and told her to do “whatever was necessary”.
Ms Jordan gave evidence by telephone. She said she could not remember speaking to Centrelink about the cancellation before 25 January 2011, but she thought she would have done so. She said she reads her mother’s correspondence and would usually tell her about anything important. She conceded that she can forget things sometimes but she could not believe she would not have spoken to Centrelink about such an important matter when her mother was relying on her.
I note that Centrelink records show that Ms Jordan told a Centrelink officer in a conversation on 17 March 2011 that it was her fault that her mother had not sought review within 13 weeks; she thought her mother had mentioned it to her but she kept forgetting to ask Centrelink about it.
I accept that Ms Jordan honestly believes she would have talked to Centrelink about the cancellation before 25 January 2011 but there is no record to support her belief.
Centrelink says, and I accept, that it has checked and re-checked its records of conversations with Ms Jordan throughout the relevant period but there is no record of a conversation in which she asked for the decision to be reviewed, or which might be interpreted that way.
I am satisfied that Mrs Khalel sought review of the decision to cancel her DSP on 25 January 2011 and not before.
WAS THE DECISION TO CANCEL MRS KHALEL’S DSP CORRECT?
By section 80(1) of the SSA Act, the Secretary must cancel or suspend a social security payment that is being, or has been, paid to a person who is not qualified to receive it or to whom it is not payable.
The Secretary contends, and I accept, that the DSP was not payable to Mrs Khalel once her portability period (which included the extension in effect granted by the SSAT) had expired: section 1215(1)(b) of the Social Security Act 1991 (the SS Act). Her portability period expired on 25 August 2010.
Centrelink documents and the SSAT’s written reasons indicate that the effect of section 109 of the SS Act is that, because Mrs Khalel did not seek review within 13 weeks of being notified, the decision to cancel her DSP “cannot be reversed”. That is not correct. The date on which she sought review is relevant only to the date of effect of a favourable decision. In her case, the earliest date from which a favourable decision could take effect would be 25 January 2011. For her DSP to be reinstated as of 25 January 2011, it needs to be established that Mrs Khalel was unable to travel as of 26 August 2010 when her payment was cancelled.
Since these proceedings commenced, Mrs Khalel has submitted further medical reports from her doctors in Lebanon. The Secretary concedes, properly in my view, that a report from Dr Louis Ayoub dated 9 July 2011 would support the finding that Mrs Khalel was unable to travel by plane for at least six months from the date of an operation on 31 January 2011. However, the evidence does not support the conclusion that she was unable to travel in the period between 26 August 2010, when her DSP was cancelled, and 31 January 2011.
Mrs Khalel told the SSAT and this tribunal that she is sick and cannot travel and she needs 24-hour care which she can only afford if her pension is reinstated. She also told the SSAT that she wants to stay in Lebanon “for ongoing rehabilitation” but needs money; she has her own unit in Lebanon and friends who help care for her but she needs money for treatment. Centrelink documents show that she left Australia on a one-way ticket and had closed her bank account.
I am satisfied that the decision that Mrs Khalel’s portability period had ended was correct. It follows that the decision to cancel her DSP was correct. The fact that medical evidence suggests that Mrs Khalel was later prevented from returning to Australia does not assist her. The only ways in which her DSP could be restored would be by way of a new claim, which would require her to be present in Australia at the time (see: section 29 of the SSA Act) or by the Secretary deciding to revoke the cancellation.
CONCLUSION
I affirm the decision under review.
I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member JF Toohey.
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Associate
Dated
Date(s) of hearing 17 January and 8 February 2012 Date final submissions received 8 February 2012 Applicant In person Solicitors for the Respondent Glenda Heggen and James Larcombe, Centrelink Program Litigation & Review Branch
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