Manjunath and Secretary, Department of Social Services (Social services second review) - [2018] AATA 1077

Manjunath and Secretary, Department of Social Services (Social services second review) [2018] AATA 1077 (27 April 2018)
Division:GENERAL DIVISION
File Number: 2017/7116, 2017/7618
Re:SWAROOP MANJUNATH
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Robert Cameron, Senior Member
Date:27 April 2018
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Robert Cameron, Senior Member
SOCIAL SERVICES – Disability Support Pension (DSP) – indefinite portability – maximum portability period – extended portability period – cancellation of DSP – portability of DSP – period of absence – temporary absence – whether a person is residing in Australia – whether travel was for humanitarian purpose or acute family crisis – eligible medical treatment – severely impaired – advance payment of Social Security benefits – deduction from DSP – whether advance payment is refundable
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Re Labrik Osmani and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605
Re Gregson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 213
Re Kristoffersen and Secretary, Department of Social Services [2015] AATA 806
Secondary Materials
Australian Government, Guide to Social Security Law, Version 1.243 (3 April 2018)
REASONS FOR DECISION
Robert Cameron, Senior Member
27 April 2018
PROCEDURAL OVERVIEW AND THE REVIEWABLE DECISIONS

The Applicant, Swaroop Manjunath, has brought applications for review of two decisions against the Secretary of the Department of Social Services (“The Secretary”).
The first decision is in proceeding number 2017/7116 which seeks review of a decision made in the Administrative Appeals Tribunal (Social Services and Child Support Division) (“AAT1”) on 21 November 2017 (“the First proceeding”). The AAT1 decision affirmed a decision made by an authorised review officer (“ARO”) of the Department of Social Services on 28 September 2017 to cancel the Applicant’s disability support pension (“DSP”) with effect from 25 January 2017 because his period of absence from Australia exceeded his maximum portability period as permitted under the Social Security Act 1991 (“the Act”).
The second decision is in proceeding number 2017/7618 which seeks review of a decision made in the AAT1 on 13 December 2017 (“the Second proceeding”) to affirm a decision made by an ARO of the Department of Social Services on 28 November 2017 not to pay an amount of $364.50 to the Applicant.
Both applications were heard together and the evidence given by the witnesses accepted in both proceedings.
However, in terms of submissions, both parties made separate submissions with respect to each application.
THE EVIDENCE AND OTHER DOCUMENTATION BEFORE THE TRIBUNAL
The following evidence was before the Tribunal:
(a)The T Documents in both proceedings;
(b)A copy of a further medical report dated 24 January 2018 prepared by Dr Ewald Einoder, a consultant psychiatrist who has treated the Applicant since approximately 2016;
(c)Viva voce evidence of the Applicant himself;
(d)Viva voce evidence of Dr Einoder;
(e)The Applicant’s written submission dated 25 January 2018 filed in the First proceeding;
(f)The Applicant’s written submission dated 9 January 2018 filed in the Second proceeding;
(g)The Respondent’s “Statement of Issues, Facts and Contentions” dated 7 February 2018 filed in the First proceeding; and
(h)The Respondent’s “Statement of Issues, Facts and Contentions” filed in the Second proceeding.
OBSERVATIONS CONCERNING THE WITNESSES
In addition to the documentary and viva voce evidence that was tendered and/or given, written submissions by way of Statement of Issues, Facts and Contentions were also filed by both parties. These written submissions have been taken into account in reaching the decisions made in both proceedings.
The Applicant was obviously an articulate and intelligent man. However, it was apparent from his demeanour in both making submissions and during the course of his evidence both in chief and in cross examination that he faced considerable difficulty in directly or properly answering any question. Frequently, he tended to embark upon an explanation or unnecessarily lengthy discourse in a belief that it would advance his case rather than properly answer the question. It was an unfortunate trait that did not assist him in promoting his cause.
Obviously, the Applicant is suffering from a variety of ailments and afflictions and therefore, some allowance must be given to him in considering the overall effect of his evidence and the weight that one might place upon it when necessary.
Dr Einoder struck me as a dedicated psychiatrist who was trying to do the best for his patient in what were obviously trying and difficult circumstances. However, I did observe on several occasions that he tended to come close to if not, cross the line in his role as an expert witness who has a primary duty to assist the Tribunal. I do not doubt his genuine concern for the Applicant as a patient but felt it was on several occasions unfortunate that he gave his evidence in the way he did which at times had the style of an advocate for his patient. Some aspects of his evidence in this light, amongst other things, will be canvassed in a little more detail subsequently in these reasons.
SOME RELEVANT FACTS
There are several facts in this matter which are not controversial. Those facts are as follows:
(i)A DSP was granted to the Applicant commencing on 16 September 2009;
(j)The Applicant left Australia on 3 February 2016;
(k)The Applicant’s DSP was cancelled as and from 2 March 2016;
(l)The Applicant returned to Australia on 22 July 2016;
(m)A DSP was further granted to the Applicant commencing 26 July 2016;
(n)On 25 January 2017 the Applicant left Australia and travelled to India;
(o)On 4 September 2017 the Applicant’ s DSP was cancelled as and from 25 January 2017; and
On 28 September 2017 an ARO affirmed the decision to cancel the Applicant’s DSP.
APPLICANT’S EVIDENCE
The Applicant gave evidence that addressed both the First and the Second proceedings. It was at times difficult to follow because of his tendency not to answer a question that was put to him but rather embark upon a speech concerning his case.
However, he stated with respect to the portability claim (the First proceeding) that there were in his view valid reasons to appeal. He stated that he should have been allowed by Centrelink to submit an application for indefinite portability before he departed Melbourne in January 2017[1]. He asserted that he was unfairly prevented from applying for the indefinite portability period and was “belatedly informed that [he] couldn’t apply for it until [he] had returned to the country”
[1] Evidence to this effect was given by the Applicant on several occasions during the course of the proceeding. It was also referred to several times in his submissions. There was no evidence given to establish that had he applied to Centrelink prior to his departure for indefinite portability of his DSP that such application would have been successful if it is otherwise a relevant matter to this proceeding which it is submitted it is not.
He further submitted that with respect to the portability claim in both his documents and submissions there were valid health and medical conditions which justified him travelling in January 2017 to India as quickly as he did. Further, on several occasions both in his evidence in chief and in cross-examination, he repeatedly sought to in effect blame Centrelink for not informing him as to his ability to claim indefinite portability of the DSP if he delayed his travel to India.[2]
[2] In addition to giving evidence to this effect the same or similar comments are made in paragraph 3 of the Applicant’s written submission dated 25 January 2018 and filed with the Tribunal which are referred to.
However, he did repeat that there were valid medical and health reasons for him travelling on 25 January to India as he did.
With respect to the reimbursement claim his evidence was somewhat more difficult to follow. However, he repeated that given the fact there had been partial repayments previously the reviewable decision was unfair. He stated that his health, medical and financial circumstances were different to the previous payments. He further stated that there were exceptional or special circumstances justifying a reimbursement to him of the amount sought. This evidence was repeated on several occasions and in particular in response to Mr Munro’s contentions and cross-examination.
The Applicant stated that when he departed for India on 25 January 2017, the nature of the departure was sudden and based upon the condition of his health and psychiatric advice he received. He repeated that he listened to the advice of his psychiatrist who he considered was in a better position to judge his predicament and advise him what to do.
He stated that he was renting a one-bedroom unit or what he described as “like a flat” at the time that he left Australia. He stated that the tenancy agreement was somewhat informal, he was not precisely sure as to its form but he continued paying rent for some weeks after he left for India and then stopped.
He also stated that he took all his personal possessions with him from the premises that he was living in when he left for India.
Evidence was given by the Applicant that he has no family in Australia.
As to banking and credit card facilities in Australia, the Applicant gave evidence that he still retains a bank account which had been used previously for receiving his pension payments. Further, he mentioned that he had more than one credit card and they had been closed off because he had defaulted in paying the balances. Recovery of such outstanding sums is in the hands of a debt collection agency. He mentioned that he had prior to his departure consulted a financial counsellor who had applied for some relief or “waiver” from these obligations. He stated he does not have a bank account in India.
The Applicant gave evidence that he was living in India “basically on doctor’s instructions” in “fully structured accommodation”. He further used words to the effect that it was solely a decision based upon his treating psychiatrist’s advice. The Applicant stated his psychiatrist advised that he needed to be placed in a structured and supportive environment and it was the only thing that he required therapeutically. He stated that he listened to his doctor’s instructions, didn’t ask too many questions and that in effect the psychiatrist “made the decision for me”. The Applicant additionally stated that his psychiatrist told him his health conditions were complicated and that he was not well with a deteriorating health situation. It was the immediate thing that had to be done. He further tellingly observed: “The therapeutic thing I needed was not available to me in Melbourne.”[3]
[3] He repeated statements to this effect in his re-examination. Further this statement or a statement to this effect was also contained in his submission filed with the Tribunal on 25 January 2018.
He gave evidence that the treating psychiatrist did not state how long he would need to stay in India but “he just told me to go and do this thing for the time being”.
The Applicant stated that he travelled to India on a one-way ticket. When pressed by Mr Munro on why this was so his response was that he couldn’t afford a return ticket and also he relied upon what he says was Dr Einoder’s advice that because of his condition it was difficult to estimate a possible return date.
This accommodation in India is apparently a small two-bedroom apartment that belongs to the family of his mother. He advised that he is not paying any rent for such apartment. He stated he has been living with his mother in the apartment ever since he returned to India. It should be noted that there was some conflict in the evidence on this point. The Applicant stated that he was living with his mother in the relevant apartment. However Dr Einoder in his evidence during cross-examination stated that the Applicant’s mother was only occasionally living in the flat in India. This difference in the evidence between the Applicant and Dr Einoder was not put to the Applicant[4], however the Applicant did not challenge that evidence from Dr Einoder in any re-examination nor make any comment about it in the final submission.
[4] Of course without recalling him it was not possible to do so. If the Doctor’s account was incorrect one would have expected the Applicant to have challenged it. As noted above he is an intelligent man with an honours degree in medical science who demonstrated this throughout the hearing.
When pressed in cross-examination for other reasons as to why he travelled overseas in January 2017 he stated that another reason was the disappearance of his father. However, to his credit he readily conceded that the primary reason for his departure was to do with his “health and medical issues. My doctors were very concerned that I was not able to cope and couldn’t stay alone. I did what I was told.” He also conceded quite properly that definitely before he departed in January 2017 he knew about the disappearance of his father.
The Applicant was asked in cross examination if there had been any humanitarian purpose behind his travel and he conceded that there was not. Further, he conceded that the hospitalisation of a family member had not in any way delayed a return or potential return to Australia. He repeated the main reason for his travel to India was primarily health and medical issues and then to a subsidiary extent the disappearance of his father.
DR EINODER’S EVIDENCE
Dr Einoder gave evidence that he commenced treating the Applicant in October 2016 and had diagnosed the Applicant with autistic spectrum disorder (“ASDO”). He stated that there is no specific treatment for such a disorder and that the only way of dealing with it is to provide a highly supportive and structured environment. The doctor observed that many people cannot understand how someone suffering from ASDO with a high honours degree in medical science could be so incompetent and just not able to look after himself, work or do anything. He further opined that it is incomprehensible someone with such a gift of speech can otherwise be so handicapped. Frequently, particularly in the past such a condition was considered to have been symptomatic of a patient suffering from depression. Frequently, as in the case of the Applicant, drugs did not assist or made him worse. What is required is support including emotional support so that such patients do not have to worry and are therefore able to function reasonably well.
The doctor stated that in the last six months of 2016 it was plainly obvious to him given his frequent contact with the Applicant that he was not coping, he stated that there were not the facilities for him in Australia. He couldn’t organise his accommodation or cook for himself. The only person who was able to do that or provide assistance was his mother who was not at the time living in Australia.
Tellingly, he stated that he advised the Applicant to travel overseas as he had become very anxious and depressed and: “I stated it was the equivalent of a medical emergency. He wasn’t being supported and it was getting worse. He needed someone to look after him like a child.”[5]
[5] This is indeed consistent with the content of Dr Einoder’s report of 24 January 2018, not to mention other reports that he has produced which are contained in the T documents and have been taken into consideration by the Tribunal in this deliberation.
In cross-examination he gave similar evidence and stated that the “idea” of travelling to India was that the Applicant would ultimately return to Australia with his mother who would look after him. It was on this occasion as observed earlier that the doctor gave evidence that to his knowledge the Applicant was living in his mother’s flat and that she was present only occasionally because she couldn’t cope living with him. This as noted above was at odds with the evidence of the Applicant concerning his accommodation arrangements with his mother in the apartment in India. It is also somewhat contradictory of the earlier part of Dr Einoder’s evidence which stated that the Applicant “needed someone to look after him like a child”, implying full time or daily care[6]. This is not what the Applicant’s mother is currently providing.
[6] Further, it is inconsistent with the evidence he later gave which is referred to below, where he stated the Aplicant had the “same capacity as a very young child.”
Surprisingly, it was at this stage in cross-examination that Dr Einoder asserted that with respect to what the Applicant’s mother was providing to him: “I think it is medical intervention”. When tackled on this assertion by Mr Munro he stated that a person who is suffering from ASDO has the same capacity as a very young child. The doctor was then probed as to whether he asserted that treatment of this kind (assuming it was medical treatment) was not available in Australia. Ultimately, but not without some persistent probing by Mr Munro the doctor conceded that care is available in Australia but it was extremely difficult to get. In arriving at this conclusion he stated that the Applicant would need residential care and that he would not ordinarily qualify for it. He did concede that although suffering from the disorder it was “not severe enough” because “he doesn’t destroy things and so on”. Dr Einoder’s evidence on this question did unfortunately shift somewhat which appeared to be in an effort to advance the cause of his patient, which was nonetheless understandable.
THE PORTABILITY CLAIM
The Respondent has correctly identified two issues which are necessary to determine in the First proceeding. Those issues are whether the Applicant’s DSP was:
(a)Portable on or after 25 January 2017 (and if so for what duration?);
(b)Correctly cancelled with effect from 25 January 2017.
The question of portability of a DSP when a recipient of such a benefit travels overseas is governed by Division 1, Part 4.2, Chapter 4 of the Act (“the Division”).
Under section 1213 of the Act, the Division applies to any person during a “period of absence” throughout which the person is continuously absent from Australia and immediately before the period of absence commenced, the person was receiving a Social Security payment mentioned in Column 2 of the table at the end of section 1217.
Section 1217 lists the DSP as a relevant payment. The Table at the end of section 1217 (“the Table”) is referred to for its full force and effect. Column 5 of such Table identifies what is described as: “Maximum portability period”. If a recipient of the DSP remains overseas for longer than the “maximum portability period”, under section 1215(1)(b) of the Act the extra days cease to be an allowable absence within the meaning of section 1217 and no further payments are due to that person.
There are three items in the Table that could possibly apply to the situation of the Applicant as the recipient of a DSP. They are:
(a)Item 2 - Disability support pension: (Any temporary absence, except for any of the following purposes: (a) to seek eligible medical treatment; (b) to attend to an acute family crisis; (c) for a humanitarian purpose.[7] A total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months).[8]
(b)Item 2AA - Disability support pension: (Temporary absence for any of the following purposes: (a) to seek eligible medical treatment; (b) to attend to an acute family crisis; (c) for a humanitarian purpose. 4 weeks.)
(c)Item 2A - Disability support pension: (Severely impaired disability support pensioner. Any absence. Unlimited period).
[7] Column 4 "Absence".
[8] Column 5 "Maximum portability period" is referred to in its entirety for its full terms.

The position of the Applicant under each of the three relevant items in the Table will now be examined.
ITEM 2 OF THE TABLE
The fulcrum of any consideration of Item 2 of the Table is whether or not the Tribunal is satisfied that the Applicant’s absence is a “temporary absence”.
Section 7 of the Act “Australian residence definitions” is relevant. Section 7(3) identifies several criteria that must be taken into account in deciding whether a person is residing in Australia.[9] These criteria were targeted by Mr Munro in both his cross-examination of the Applicant and his submissions.
[9] The section provides:
“(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.”
The following proven facts address these criteria:
(a)The Applicant has not used any accommodation in Australia since he left for India in January 2017;
(b)He has no family in Australia;
(c)He has no employment, business or financial ties with Australia save for one bank account and his credit card accounts have been closed;
(d)There was no evidence of any assets located in Australia owned by the Applicant;
(e)He left Australia on a one-way ticket; and
(f)He has remained continuously outside of Australia living in India in an apartment provided by his mother since he left on 25 January 2017.
The evidence identified above indicates that overall, the Applicant has little current connection with Australia, nor has he had any since his departure in January 2017. In the circumstances at the very least, there is insufficient evidence to enable the Tribunal to reach a conclusion that the Applicant’s absence from Australia is temporary. However, overall the preponderance of the evidence referred to above leads the Tribunal to the conclusion that the Applicant’s absence from Australia is not temporary. Therefore, it cannot be satisfied that Item 2 of the Table applies and must determine accordingly.
Further, in any event as at 25 January 2017, in the preceding 12-month period the Applicant had been absent from Australia, and in receipt of the DSP.[10] Accordingly, the DSP was not payable to the Applicant as and from 25 January 2017 under Item 2 and by the operation of section 1215(1)(b) of the Act.
[10] It will be recalled that the Applicant left Australia on 3 February 2016 and returned on 22 July 2016. Given those facts the maximum portability period that the Applicant was entitled to under Item 2 had already been exhausted.
ITEM 2AA OF THE TABLE
In turning to consider the question of Item 2AA of the Table it should be observed as noted above that the Tribunal cannot be satisfied that the Applicant’s absence from Australia is temporary.
In terms of the criteria contained in Column 4(c) of the Table, the Applicant conceded that he did not travel to India for a humanitarian purpose.
With respect to the question of an “acute family crisis” in Column 4 (b) of the Table, the evidence demonstrates that the Applicant had been well aware of his father’s disappearance for some time.[11] Certainly, it was apparent that during his trip to India between 3 February 2016 and 22 July 2016 he was aware of the disappearance of his father. It is submitted that if there was an acute family crisis the immediacy of such crisis had passed by the time of his return to Australia on 22 July 2016[12]. It should be noted that the Applicant did concede that medical considerations were the main reason for his trip to India in January 2017. He stated he did not want the issue of his father’s disappearance to be excluded. When pressed he did not seriously seek to contend that it was still really a factor. However, one must repeat that for the reasons noted above the disappearance of his father cannot be considered to amount to an acute family crisis within the meaning of Item 2AA of the Table.
[11] There is some conflict in the documentary evidence as to the exact date that the Applicant became aware of his father's disappearance. This was probed in cross-examination by Mr Munro. In the medical report contained in document T 41 it is stated that his father disappeared in early April 2016 and in another document T70 it is suggested he disappeared in January 2016. The Applicant conceded that in his "confused state" he didn't know the exact date but did not cavil with either of those dates in question nor, that he had known of his father’s disappearance for a long time prior to his January 2017 departure from Australia.
[12] The Applicant also stated that he had not been able to obtain a missing person’s report for his father. The Respondent also contended that there was no corroborating evidence that the Applicant's father was facing a life threatening situation or a situation beyond his control.
The next matter contained in Item 2AA of the Table to be addressed is a temporary absence for the purposes of seeking “eligible medical treatment”.
Despite the attempts of Dr Einoder, it seems unrealistic to suggest that a person living with their mother in an apartment (assuming that the Applicant’s mother is indeed living in the apartment with him) could possibly be categorised as medical treatment. She is, as any parent would do in such a setting, providing necessary care. As described in evidence it does not have the characteristics or indicia of medical treatment. There is no intervention or supervision by a legally qualified medical practitioner or nursing staff. There is no administration of any drugs or other therapy by medical or nursing staff and nothing that could be seen as “medical treatment” in any conventional sense. There was no therapeutic treatment. Therefore for these reasons that element of the Table has not been satisfied.
Further, it must be observed that under section 1212 such eligible medical treatment in relation to a person means medical treatment of a kind that is not available to the person in Australia.
Section 1212 of the Act contains a definition of “eligible medical treatment” as follows:
“eligible medical treatment”, in relation to a person, means medical treatment of a kind that is not available to the person in Australia.
Even if the care provided by the Applicant’s mother to him was otherwise to be classified or categorised as “medical treatment” it has to be established that it was of a kind not available to him in Australia. As was observed by Senior Member Fice in Re Labrik Osmani and Secretary, Department of Education, Employment and Workplace Relations[13] the fact that it is difficult to find available treatment in Australia does not satisfy the statutory expression. Further, as Senior Member Fice observed even if it were true that the treatment offered overseas was more effective than any program in Australia it is not a relevant consideration under the statute.
[13] [2010] AATA 605 at [33]. The decision of Senior Member Fice is instructive in terms of the guidance that it offers in considering the facts of this case.
It will be recalled that Dr Einoder conceded in cross-examination that residential care of the kind that would assist the Applicant is available in Australia but is difficult to get. Given this concession this limb of Item 2AA of the Table is not satisfied and therefore, the Tribunal cannot find that Item 2AA of the Table applies to the Applicant’s situation so as to enliven portability in the relevant sense.
On the question of absence to seek eligible medical treatment, the Tribunal observes that the Applicant also introduced evidence to demonstrate that he is suffering from several other medical conditions. Accordingly, these conditions and the evidence tendered to establish the existence of them will be examined to adjudicate on whether or not such conditions might otherwise constitute eligible medical treatment as contemplated by Item 2AA of the Table.
A CT scan of the Applicant’s lumbar spine on 6 September 2004 revealed at the L4-L5 level there was a broad-based disc protrusion. This protrusion was found to be mild in nature and producing only a mild degree of deformity of the lumbar theca at that level. It was concluded by the treating doctor that it appeared quite small in that position.[14]
[14] The relevant medical report from Dr. T Gilford is document T 30 of the T documents.
Further investigation of the Applicant’s spinal condition was undertaken in Bangalore, India by an MRI on 21 June 2016.[15] This examination revealed that the L3 - 4 disc shows posterior central disc protrusion causing mild thecal indentation; L4 - 5 disc shows dehydration, mild annular disc bulge with posterior central and left para central disc protrusion causing moderate thecal and left foraminal nerve root compression; L5 – S1 disc shows dehydration, posterior central circumferential annular tear with associated disc protrusion causing mild thecal indentation.
[15] This report from Dr Reddy is document T 32 of the T documents.
On the same day a medical report from Associate Professor Radhakrishna opined that the Applicant was: “not able to sit for long hours or travel for long hours.”[16]
[16] The report from Associate Professor Radhakrisha is document T 31 of the T documents.
The Applicant stated to an ARO on 21 June 2016 that “his lower back got aggravated soon after he arrived in India[17]”.
[17] See document T 33 of the T documents.
A report from Dr Kurpad of 23 June 2016 noted that the Applicant had: “presented today to us for the management of his low back pain of many years duration.”[18]
[18] Document T 34 of the T documents.
Dr Chiu reported, amongst other things, on 11 August 2016 in a letter for “Centrelink”: “He suffers from chronic back pain from a L 4 – 5 disc prolapse with canal stenosis.”[19]
[19] Document T 36 of the T documents.
In a further letter addressed to “To whom it may concern” Dr Chiu in addition to repeating that the Applicant had a history of chronic back pain due to a prolapsed disc, observed that during his stay in India such back pain had been exacerbated causing significantly more pain which would not allow the Applicant to sit in a plane for an extended period of time.[20] Similar observations were made by Dr Chiu in a further report of the same day in which a slightly more extensive consideration of the Applicant’s conditions, including his disc prolapse and resultant chronic back pain, was produced.[21]
[20] Document T 40 of the T documents. The report is referred to in its entirety as it also observes that the Applicant at that time was suffering from multiple medical conditions which had deteriorated whilst he was in India.
[21] Document T 41 of the T documents. Once again this report is referred to its entirety.
On 7 December 2016 Dr Chiu made similar observations of a disc prolapse at L4 - L5 and the consequent chronic back pain suffered by the Applicant[22].
[22] Document T 51 of the T documents.
None of these medical reports suggest that the Applicant should travel overseas for medical treatment or that there is no medical treatment of a kind that could treat the Applicant’s spinal conditions available in Australia.
The consideration of the Applicant’s medical history concerning his spinal condition is also relevant to a consideration of the question of an extension of the portability period under section 1218C of the Act which will be referred to below.
Further, there is no evidence to establish that the Applicant has had medical treatment in India for this spinal condition on or after 25 January 2017 of a kind that is not available in Australia. For these reasons this condition does not satisfy the requirement of eligible medical treatment contained in Item 2AA of the Table.
Dr Kevin Lee in a report dated 18 October 2016 expressed the opinion that the Applicant: “has had chronically low levels of testosterone below the standard average and definitely below the average for someone of his age. This has resulted in severe functional impact.”[23]
[23] The report of Dr Lee is document T 43 of the T documents at page 92.
Notwithstanding this diagnosis, Dr Lee does not suggest that treatment overseas is necessary for this condition or that there is any treatment available overseas of a kind that is not available in Australia. For these reasons this condition does not satisfy the requirement of eligible medical treatment contained in Item 2AA of the Table.
A report of 6 December 2016 which was undertaken due to the Applicant’s “Suspected Obstructive Sleep Apnoea Syndrome” following an “Unattended Somte’ screening study” concluded there was evidence of moderate obstructive sleep apnoea.[24]
[24] The report was prepared by Dr Simon Joosten and is document T 50 of the T documents at page 120.
In addition to the evidence of the Applicant and Dr Einoder (and his diagnosis of ASDO) referred to above, there is considerable documentary evidence by way of several reports from appropriately qualified medical professionals as to the Applicant’s mental health afflictions. These reports in evidence date from 2009[25]. Apart from Dr Einoder’s diagnosis of ASDO they identify similar long-standing problems.[26]
[25] The first medical report in the T documents is from Dr Ibrahim a Consultant Psychiatrist of 7 October 2009. He diagnosed the applicant with a "severe degree of mood disorder, atypical depression, with significant Axis II dependent traits” and had prescribed medication to address such afflictions.
[26] Other reports in evidence in the T documents considered by the Tribunal the contents of which speak for themselves include as follows:
·Sally-Anne McCormack psychologist dated 8 October 2009 (T document 14);
·Professor Nicholas Keks consultant psychiatrist dated 10 January 2010 (T document 15);
·Dr. H Sivakumaran psychiatrist 17 June 2010 (T documents 16) who provided an opinion that the Applicant is suffering from major depression and that his obsessive personality was the major obstacle to treatment;
·Dr Mark Walterfang, consultant psychiatrist and neuropsychiatrist 1 September 2010 (T document 17);
·Dr Walterfang, 7 September 2010 (T document 18), in this report Dr Walterfang notes that the Applicant has also seen Professor Graham Burrows (no copy of any report from Prof Burrows has been introduced in evidence);
·Professor Keks, 14 October 2010 (T document 19);
·Dr Hema Sivakumaran, clinical psychologist, 28 October 2010 (T document 20);
·Prof Bruce Singh, consultant psychiatrist 12 March 2011 (T document 21), in this report Prof Singh observed, amongst other things,: "I thought that he demonstrated an unfortunate combination of dysphoric mood plus personality disorder with marked obsessional and to a certain extent dependent features. I am not particularly optimistic about his future, I think basically he needs virtually palliative support to help him cope with his chronic biopsychological problems.” He opined further in this report that he saw the applicant: "as basically needing long-term supportive therapy, really because of his poor prognosis."
·Associate Professor Darren Mansfield, sleep disorders physician 7 September 2016, (T document 38);
The first report from Dr Einoder in evidence is dated 27 October 2016.[27] Whilst this report does not refer to ASDO he observes that the Applicant has been severely distressed with chronic, severe anxiety and depression. The report also stated the Applicant is disabled and unable to work for the last 10 years. Dr Einoder expressed the opinion that the Applicant’s psychological ill-health was caused by a major nervous breakdown in his early 20s which passed unnoticed.
[27] Document T 45 of the T documents.
In a further report of 2 January 2017 Dr Einoder observed that the Applicant’s “mental state is equivalent to a medical emergency”. He provided a further report on 14 September 2017[28] in which he observed: “as far as one can assess the past, he was (and still is) seriously distressed, confused and in considerable debt without any support from both parents he was (and still is) socially totally isolated”.
[28] Document T 65 of the T documents.
In the final report tendered to the Tribunal by Dr Einoder he stated in the second paragraph that the applicant: “is a chronically mentally and emotionally handicapped patient who needs structure, intense physical, psychological, social support and direction if he is to survive at all? As this cannot be provided in Australia I strongly advised him to return to India to live with his mother.”
When one examines the contents of all these reports the only conclusion that can realistically be drawn is that the Applicant has suffered from these conditions for many years. Certainly, the various afflictions that are identified in each of the reports considered by the Tribunal were suffered by the Applicant long before he left Australia for India on 25 January 2017.
Once again there is no recommendation contained in the report or any other material suggesting that the Applicant must travel overseas for medical treatment of such condition,[29] or that after 25 January 2017 the Applicant has had treatment overseas for this condition that is not available in Australia. For these reasons this condition does not satisfy the requirement of eligible medical treatment contained in Item 2AA of the Table.
[29] As noted above the report of Dr Einoder of 24 January 2018 did state that he strongly advised the Applicant to return to India to live with his mother it did not say that it was for "medical treatment" and the observations concerning his oral evidence given to the Tribunal on this question noted above is referred to again where in cross-examination he conceded that such recommendation was not for "medical treatment" but ultimately support and care that his mother was able to provide him, which in the circumstances, was the best option for managing his problems.
ITEM 2A OF THE TABLE
Item 2A of the Table provides that a disability support pensioner’s maximum portability period is unlimited where the person is “severely impaired”.
In determining whether the recipient of a DSP is severely impaired within the meaning of Item 2A of the Table several sections of the Act are relevant.
Firstly, section 1218AAA provides as follows:
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a) the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b) the person’s portability period for disability support pension had not ended at the time the event occurred.
(3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
(5) In this section:
work means work:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.

Section 94(3B) of the Act provides a definition of severe impairment. The section reads as follows:
(3B) Severe impairment
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
The “Impairment Tables” are defined in section 23 of the Act (“Dictionary”) in the following terms:
Impairment Tables means the tables determined by an instrument under subsection 26(1).
In several respects there is simply no evidence or alternatively insufficient evidence to reach a conclusion that the Applicant qualifies for the unlimited period of portability under item 2A of the Table.
There are several reasons for reaching this conclusion:
(a)There has never been a determination made by the Secretary under section 1218AAA that the Applicant qualifies for an unlimited maximum portability period;
(b)There is no evidence that the Applicant has ever sought such a determination;
(c)There is no evidence that the Applicant suffers a severe impairment being an impairment of 20 points or more under the Impairment Tables of which 20 points or more are under a single Impairment Table; and
(d)Indeed, he has not been assessed with reference to the current Impairment Tables.
The Guide to Social Security Law (“the Guide”) at chapter 7.1.2.10 under the heading “Indefinite portability of DSP - severely impaired disability support pensioner” mandates that DSP recipients applying for portability under the relevant provisions are required to undergo an assessment of their impairment and their future work capacity.
An assessment under the applicable Impairment Tables is required. The Applicant has not been assessed in any way at all concerning his impairment or his future work capacity.
There is no evidence that satisfies the requirements of section 1218AAA(2)(a) that the Applicant is unable to return to Australia because of a serious accident involving him or his hospitalisation. Indeed, it appeared from the evidence of Dr Einoder that the Applicant could return to Australia and was expected to do so in the context that his mother would also return to Australia to care for him.[30] There was never any suggestion that the Applicant is unable to return to Australia. Unfortunately, this has not occurred. If the requirements of section 1218AAA(2)(a) cannot be satisfied, that section mandates that the Secretary must not make a determination concerning the Applicant’s maximum portability period.
[30] Dr. Einoder was asked the following question in cross examination and responded as follows:
“What was your recommendation about seeing his mother? It was for several months with the idea that his mother would come back to Australia and look after him.” (Emphasis added.)
For the sake of completeness it should be noted that the Respondent in its Statement of Issues, Facts and Contentions referred the Tribunal to two decisions which provide guidance and to the extent necessary fortification of the conclusions reached above under this aspect of the claim. In Re Gregson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[31] Senior Member Dr Levy observed:
I consider Mr Gregson could still not qualify under that section as the evidence available is inadequate. In particular there would first have to be a “written determination” under s 1218AAA(1) that Mr Gregson has an unlimited period of portability because:
(a) He has a “severe impairment” (s1218AAA(1)(b)). There is no evidence of such an assessment so this Tribunal cannot review that requirement.
[31] [2013] AATA 213 per Senior Member Dr Levy. The Tribunal was also referred to the case of Re Kristoffersen and Department of Social Services [2015] AATA 806 which reaches a similar conclusion concerning this question and does provide some further guidance.
SECTION 1218AB OF THE ACT – EXTENDED PORTABILITY PERIOD
The Respondent did quite properly draw the Tribunal’s attention to the provisions of section 1218AB of the Act which gives the Secretary the power by written determination to extend a DSP portability period if all of the relevant circumstances identified in that section are satisfied.
The Section provides:
1218AB Extended portability period for disability support pension
(1) The Secretary may, by written determination, extend the person’s portability period for disability support pension if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B));
(b) the person is receiving disability support pension;
(c) the person is wholly or substantially dependent on a family member of the person (see subsection 23(14));
(d) the Secretary is satisfied that the person will be living with the family member of the person throughout the period of absence;
(e) the family member of the person is engaged in employment in Australia for an employer immediately before the start of the period of absence;
(f) the Secretary is satisfied that the family member of the person will be engaged in employment outside Australia for that employer throughout the period of absence.
(2) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for disability support pension, for the purposes of this Part, is the extended period.
(3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
From the facts identified above in this matter and the previous discussion it should be readily apparent that this section of the Act cannot apply to the Application before the Tribunal.
EXTENSION OF PORTABILITY PERIOD
The Respondent also quite properly referred the Tribunal to the provisions of section 1218C of the Act which in certain circumstances confers upon the Respondent a discretion to extend a Disability Support Pensioner’s portability period in the event that such person is unable to return to Australia due to certain prescribed events.
Once again, it is appropriate to reproduce the section in its entirety:
1218C Extension of person’s portability period—general
(1) The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a) a serious accident involving the person or a family member of the person;
(b) a serious illness of the person or a family member of the person;
(c) the hospitalisation of the person or a family member of the person;
(d) the death of a family member of the person;
(e) the person’s involvement in custody proceedings in the country in which the person is located;
(f) a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g) robbery or serious crime committed against the person or a family member of the person;
(h) a natural disaster in the country in which the person is located;
(i) political or social unrest in the country in which the person is located;
(j) industrial action in the country in which the person is located;
(k) a war in the country in which the person is located.
(2) The Secretary must not extend the person’s portability period under subsection (1) unless:
(a) the event occurred or began during the period of absence; and
(b) if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
(3) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.
The Respondent’s starting point in addressing the application or otherwise of this section is to assert that there was no portability period to extend, therefore not enlivening the application of the section. For the reasons articulated above this argument has to be correct.
However, if the Tribunal is incorrect in this conclusion nonetheless it is apparent that there is no evidence that the Applicant was unable to return to Australia because of any of the events identified in section 1218C.
The various medical conditions for which evidence was before the Tribunal at the hearing have been present from a time well prior to the Applicant’s departure for India on 25 January 2017. The detailed analysis of the various medical conditions from which he suffered undertaken above in these reasons under the heading “ITEM 2AA OF THE TABLE” provides an ample foundation for this conclusion.
Therefore, this section has no application to the circumstances of the Applicant.
CONCLUSION ON THE FIRST PROCEEDING
For the reasons articulated above in answering the two issues it is necessary to determine in this matter that:
(a)The Applicant’s DSP was not portable on or after 25 January 2017; and
(b)The Respondent was entitled as it did on 4 September 2017 to cancel the Applicant’s DSP under section 80 of the Social Security (Administration) Act 1999 with effect from 25 January 2017 on the grounds that it ceased to be payable under section 1215(1)(b) of the Act.
Accordingly, the decision made by the AAT1 on 21 November 2017 is affirmed.
THE SECOND PROCEEDING
In considering the Second proceeding it is necessary to outline the relevant facts that emerge from the material in evidence before the Tribunal. Most of these facts are established through properly admissible documentary evidence.
On 7 January 2016, the Applicant, having been in continuous receipt of a DSP for more than three months, applied for an advance of $1,227.45 of his pension[32]. The Department determined to grant it and made the advance[33]. The advance was deposited into the Applicant’s bank account on 11 January 2016[34].
[32] The advance of $1, 227.45 is hereafter referred to as "the advance".
[33] See documents T 13 (page 73) and T 19 (page 81) of the T documents.
[34] See document T 14 (page 75) of the T documents.
Total sum of $364.50 was deducted from the Applicant’s DSP payments during the period from 25 January 2016 to 4 March 2016 as partial repayment of the advance.[35]
[35] See document T 14 (pages 74 – 75) of the T documents.
The Applicant’s DSP was cancelled with effect from 2 March 2016. Consequently, on 22 June 2016, the Department made a determination that the Applicant owed a debt equivalent to the remaining unpaid portion of the advance amounting to $862.50[36].
[36] The decision is to be found in document T 3 (page 16) of the T documents.
From 9 August 2016 to 1 November 2016 further amounts of $145 were deducted from a Newstart Allowance payable to the Applicant as a further partial repayment of the advance[37].
[37] See document T 17 (page 79) of the T documents.
On 6 October 2017, the AAT1 affirmed the determination of the Department made on 22 June 2016 that the Applicant owed a debt of $862.50 being the then outstanding balance of the advance that was due and payable.[38]
[38] The AAT1 decision is to be found in document T 5 (page 19) of the T documents.
The Applicant sought review of the AAT1 decision referred to in the previous paragraph by this Tribunal. On 24 October 2017 the Applicant and the Respondent agreed to settle that proceeding on terms that the outstanding debt due under the advance was waived pursuant to section 1237AAB(2) of the Act (“the terms of settlement.”) A further requirement of the terms of settlement was that the Applicant withdrew his application to the General Division of this Tribunal and that such application would be taken to be dismissed[39]. In accordance with the provisions of the terms of settlement this Tribunal dismissed the application on 25 October 2017[40].
[39] The relevant terms of settlement are contained in document T 6 (page 25) of the T documents.
[40] Confirmation that the proceeding had been dismissed by this Tribunal is found in document T 7 (page 26) of the T documents.
Following the entry into the terms of settlement by the parties, the Respondent decided on 30 October 2017 to waive the debt owed on the advance in full[41]. Further, it determined to repay an amount of $145 to the Applicant being the amount of the advance which had been repaid by him (“the October 2017 decision”[42]).
[41] See document T 6 (page 78) of the T documents.
[42] See document T 17 (page 79) of the T documents.
The Applicant sought a review of the October 2017 decision on the grounds that a further amount of $364.50 should be paid to him.
An ARO affirmed the October 2017 decision on 28 November 2017[43].
[43] See document T 8 (pages 27 – 28) of the T documents.
The AAT1 affirmed the decision of the ARO on 13 December 2017. On 21 December 2017 the Applicant applied to this Tribunal for review of the AAT1 decision[44].
[44] The "Reasons for Decision" of Member Forgan are contained in document T 2 (pages 8 – 13) of the T Documents.
THE EVIDENCE AND SUBMISSIONS OF THE APPLICANT
The oral evidence of the Applicant on this topic was referred to in paragraph 17 above.
Additionally, the Applicant has submitted documents[45] which placed before the Tribunal several other matters that he relies upon in support of a claim for reimbursement. They are in summary as follows:
(a)He had originally tried to “appeal” the obligation to repay the entire $1,227. He contends that if the sum of $862.95 had been waived and $145 partially repaid the remaining $364 should also be reimbursed;
(b)That he has suffered severe medical hardship, mental and physical health conditions, financial, personal and housing circumstances, that have led to a deterioration of his physical and mental state and that he did not understand the legal obligation he undertook when applying for the sum of $1,227;
(c)That he is facing severe financial hardship including cancellation of the disability support pension;
(d)He has no employment or other source of income, no future work capacity;
(e)He owns no house or other property, has significant debts to the bank, the tax office and sundry loans, that he is chronically at risk of homelessness;
(f)That in some way the legal obligation to repay that portion of the advance should also have been waived as in the terms of settlement and he be afforded a refund[46]; and
(g)Finally, that he has had severe and acute family issues with his father missing in India.
[45] The Applicant has filed a statement concerning reimbursement of the $364 on 9 January 2018. The statement is referred to in its entirety for its full force and effect. He gave submissions in similar terms.
[46] He gave evidence to this effect in a way that was not easy to follow.
CONCLUSIONS ON THE SECOND PROCEEDING
The Act enables advance payment of Social Security entitlements to be made to an appropriate recipient[47].
[47] See Part 2.22 of the Act. A Social Security entitlement is defined to include a disability support pension under s 23 of the Act. The qualification criteria for an advance payment of a Social Security entitlement are contained in s 1061A “Qualification for advance payment" of the Act.
Section 1061EL mandates that where an advance payment has been made the recipient must repay the advance by one of several methods including a deduction from that person’s Social Security entitlement.
The contention of the Respondent in short is that the Applicant has been paid the advance under section 1061A of the Act; the repayments of $364.50 were deducted from the Applicant’s DSP because the Respondent was entitled to do so by operation of section 1061EL(1)(a) of the Act.
Where a recipient of a DSP ceases to receive such entitlement, any amount of an advance outstanding as at the date of cessation of that Social Security benefit crystallises by operation of section 1224E of the Act as a debt due to the Commonwealth for obviously a liquidated sum. Therefore, once the Applicant’s DSP ceased the amount of the advance that remained unpaid was a debt due and owing. As noted earlier in the consideration of these reasons, that debt was waived by entry into the terms of settlement under the provisions of section 1237AAB(2) of the Act.
There is no legal or factual foundation by reason of the foregoing consideration which entitles the Applicant to a refund of $364.50. Once that sum had been repaid by deductions from the Applicant’s relevant Social Security entitlement all rights with respect to those funds merged in such payment. As has been noted correctly by the Respondent in its Statement of Issues, Facts and Contentions, whilst there are provisions in the Act for waiver and refund of debts, there are no such provisions allowing for the refund of repayments of an advance. The Applicant’s application for review therefore must fail.
By reason of the foregoing matters the decision made by the AAT1 on 13 December 2017 is affirmed.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Robert Cameron

........................................................................
Associate
Dated: 27 April 2018

Date(s) of hearing: 19 February 2018

Applicant: In person

Solicitors for the Respondent: Cameron Munro, Department of Human Services FOI and Litigation

Date(s) of hearing:	19 February 2018
Applicant:	In person
Solicitors for the Respondent:	Cameron Munro, Department of Human Services FOI and Litigation