Manolev and Secretary, Department of Family and Community Services
[2005] AATA 398
•4 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 398
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/25
GENERAL APPEALS DIVISION ) Re JIVKO MANOLEV Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr P Staer, Member Date4 May 2005
PlacePerth
Decision The decision under review is affirmed ...................(sgd P Staer)...................
Member
CATCHWORDS Portability…Carers Allowance and Carers payment…26 weeks overseas…serious illness…temporary of permanent absence
REASONS FOR DECISION
HISTORY
1. The applicant was born in Bulgaria on 29 June 1954.
2. He and his wife arrived in Australia on 14 May 1996, as a result of a migrant application lodged in 1992 sponsored by his brother-in-law.
3. The Manolevs’ early years in Australia were difficult as his brother-in-law’s circumstances had changed and he was unable to support them and they had 2 year preclusion from entitlements to welfare payments. They had not been advised of changes in relation to welfare payments before they left Bulgaria. This and subsequent problems made it difficult for them to settle happily in Australia.
4. Because of language barriers they were only able to obtain occasional part time employment.
5. Mrs Manolev received compensation for a work injury in November 2002 which resulted in a preclusion period and recovery by Centrelink of part of the lump sum payment.
6. On 16 July 2001 Mrs Manolev was granted a Disability Support Pension (“DSP”) in relation to her back problems resulting from the compensable injury. On the same day her husband, Jivko, was granted Carer Payment and Carer Allowance.
7. Following receipt of these allowances from the Department of Social Security (“the Department”) the Manolevs began investigating returning to Bulgaria. They found on enquiry that both of their allowances would cease after 26 weeks, but that a severe disability pension carries unlimited portability whereas the DSP Carer Payment and Carer Allowance only were portable for temporary absences from Australia for up to 26 weeks.
8. Mrs Manolev obtained medical certificates which were presented to the Department and she was assessed as severely disabled as from 26 September 2002. The Manolevs had a number of discussions with the Department between September and November 2002 in relation to extension of the portability of the Carer Payment and Carer Allowance and they were distinctly informed on many occasions that the Carer Payment and Carer Allowance would only be effective for 26 weeks of a temporary absence from Australia.
9. On a number of occasions in discussions with the Department the Manolevs indicated that they would be away for more than 6 months and possibly up to a year.
10. The Manolevs left Australia on 14 November 2002.
11. On 9 May 2003 Mr Manolev advised Centrelink that he would be unable to return to Australia on 15 May 2003 at the expiry of 26 weeks as he had to care for his wife who was very ill and he wished to apply for a discretionary extension of his Carer Payment and Carer Allowance. Centrelink rejected this application on the grounds that his wife’s condition had existed prior to her departure from Australia and there was no evidence that her condition had deteriorated significantly since leaving Australia.
12. Mr Manolev’s Carer Payment and Carer Allowance were consequently ceased with effect from 15 May 2003.
13. Mr Manolev then appealed the decision to cancel his Carer Payment and Carer Allowance on the basis that he had developed a medical condition which caused him to have phobias about enclosed spaces and heights and which precluded him from flying. He provided medical reports from Dr Popstoev and Dr Yankov, in Bulgaria in relation to his medical condition and his inability to undertake long travel.
14. On 29 July 2003 a Centrelink Authorised Review Officer decided there was insufficient evidence to change the original decision and affirmed that decision.
15. Mr Manolev appealed to the Social Security Appeals Tribunal (“SSAT”) on 8 September 2003 and the SSAT affirmed the ARO’s decision on 23 December 2003.
16. Mr Manolev then wrote a letter on 21 January 2004 from Bulgaria outlining his and his wife’s history and circumstances and asking for help. This letter was taken as an application for review by this Tribunal.
Hearing
17. At the hearing the applicant was represented by his son Ilia, who had some assistance from a Sally Bower. The respondent was represented by Ms Bradley. The Tribunal was notified two days before the hearing that the applicant was ill and would not be available by telephone. No certificates were produced. On the day of the hearing we were still told that the applicant himself was unavailable by telephone.
18. As the matter had already had two adjournments and one directions hearing, and the applicant could give no idea when he would be available by telephone it was decided to continue with the hearing. Ilia, as well as presenting the case, gave evidence on behalf of his parents and emphasised their precarious financial situation. Even though Mrs Manolev had been granted a Severe Disabled Pension before she left Australia, Mr and Mrs Manolev had returned to Bulgaria while she was still in a preclusion period in relation to the compensation payment. During this preclusion period her pension was ceased. As they were in Bulgaria at the end of the preclusion period, the pension was not paid as it would have to be re-applied for and that re-application would need to be done while Mrs Manolev was in Australia.
19. With the ceasing of Mr Manolev’s Carer Payment and Carer Allowance they had no source of income apart from what their sons were able to send them from Australia.
20. Ilia said that his mother’s condition fluctuated but she still needed a lot of care and was able to do very little in the house. His father’s health had also deteriorated while being away, possibly accentuated by the stress of caring for his wife.
21. There is much medical evidence which has come from doctors in Bulgaria and translated into English. Prior to the hearing this evidence had been incorporated into extended T documents which were before the Tribunal under s 37 of the ACT Some of the terminology is difficult to understand as it doesn’t always coincide with medical terms used in Australia.
22. Mrs Manolev still has significant depression and since returning to Bulgaria had a hysterectomy for which she was hospitalised but this was after the cessation of the Carer Pension and can’t be used under s 1218C(1)(c) as a means for a discretionary extension.
23. The applicant had originally applied for discretionary extensions in relation to his need to care for his ill wife but after it was realised that this was not going to be successful, he applied on the basis of his own health. The closest medical report we have to the 15 May 2003 is a letter from a Dr Popstoev on 11 June 2003.
24. The diagnosis in this report is “combined autoneurological syndrome with neurovegetative distonia”. The Tribunal finds it difficult to understand just what is meant by those terms. In the text of the report it states that:
“For the last few months he has been suffering from dizziness with stagger and daze. He also has unsteady gait slight noise in the ears. He also complains of mild diffusive headache located in the occipital and frontal part of his head, the blood pressure being 140/90. Apart from that the patient complains of overall tenseness and uneasiness, which prevent him from falling asleep at night and his sleep is restless. The cause of these complaints is of personal character – his wife has been undergoing a continuous treatment for several months and needs constant care.”
Then further down he states: “The patient is emotionally unstable with symptoms of phobia of closed spaces and height”.
25. Other medical reports are also somewhat vague as far as the reporting is concerned. Although one must allow that something will always be lost in translation.
Legislation
1217(5) However, if:
(a)the person was a severely disabled person at the commencement of the period of absence; and
(b)during the period of absence, the person ceased to be a severely disabled person;
the person’s portability period for disability support pension, in relation to the period of absence, is taken to have begun when the person ceased to be a severely disabled person.
History
S.1217(5) inserted by Act No. 94, 2000, by s.3, Schedule 1, Part 1(111);
S.1217(5) (Note) repealed by Act No. 30, 2003, by s.3, Schedule 4(113) (Misdescribed);
Portability of social security payments Column 1 Column 2 Column 3 Column 4 Column 5 Item Payment Person Absence Maximum portability period 1 Age pension All persons Any absence Unlimited period 2 Disability support pension Severely disabled person Any absence Unlimited period 3 Disability support pension Person other than severely disabled person Any absence 26 weeks 4 Wife pension Entitled person Any absence Unlimited period 5 Wife pension Person other than entitled person Any absence 26 weeks 6 Carer payment All persons Any temporary absence 26 weeks 7 Bereavement allowance All persons Any absence Unlimited period 8 Widow B pension Entitled person Any absence Unlimited period 9 Widow B pension Person other than entitled person Any absence 26 weeks 10 Widow allowance All persons Any temporary absence 26 weeks 11 Parenting payment All persons Any temporary absence 26 weeks
12 Youth allowance Person other than person undertaking full-time study A 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.
26 weeks 13 Youth allowance Person undertaking full-time study Any temporary absence 26 weeks
(but see also section 1218)14 Austudy payment All persons Any temporary absence 26 weeks
(but see also section 1218)15 Newstart allowance All persons A 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.
26 weeks 15A Newstart allowance Persons of at least 50 years of age who are subject to a Newstart Activity Agreement other than an agreement requiring the person to undertake an activity referred to in paragraph 606(1)(a) Any temporary absence 26 weeks 16 Mature age allowance and mature age partner allowance under Part 2.12A All persons Any temporary absence 26 weeks 17 Mature age allowance under Part 2.12B All persons Any temporary absence 26 weeks
18 Sickness allowance All persons A 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.
26 weeks 19 Special benefit All persons A 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.
26 weeks 20 Partner allowance All persons Any temporary absence 26 weeks 21 Carer allowance All persons Any temporary absence 26 weeks 22 Mobility allowance All persons Any temporary absence 26 weeks 23 Telephone allowance All persons Any temporary absence 26 weeks History
S.1217 (Table, Item 15A) inserted by Act No. 35, 2003, by s.3, Schedule 5(15);1218C.(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.1218C.(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.1218C.(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.
Discretionary Extension of Portability
26. Under s 1218C of the Social Security Act there are a number of events which can be taken into consideration for the Secretary to extend the portability of a social security payment. The only one that fits in the case of Mr Manolev is s 1218C(1)(b) “serious illness of the person or a family member of the person”
27. We have already concluded that Mrs Manolev may have a serious illness but it is an illness which was present before they left Australia and therefore she is excluded on the basis of s 1218C(2)(a) – the event did not occur or begin during the period of absence.
28. In Mr Manolev’s case the Tribunal has to take note of what is meant by “a serious illness of the person” and whether Mr Manolev’s illnesses would qualify him under this category. The section speaks of “events” and the Tribunal believes this means a specific identifying incident and not something which came on gradually.
29. The Macquarie Dictionary gives some of the following definitions of “serious”: ‘of grave aspect’, ‘giving cause for apprehension’, ‘critical’. In the Explanatory Memorandum of changes to the Social Security Act it states under the new Section 1218C - Extension of a person’s portability period: “This Section provides a discretion for the Secretary to extend a person’s portability period where the person finds him or her self in any of the grievous circumstances listed in the Section”.
30. The Tribunal would, from the above, come to the conclusion that the intention was that granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would be over in a short period of time and the person involved would be able to return to Australia.
31. The Tribunal finds that Mr Manolev’s illnesses are rather vague without specific onset and without a specific end point..
32. Centrelink had also asked the following question, to which, as yet, they had no satisfactory answer.
“1.When did the being unable to fly because of fear of heights and enclosed spaces start?
2.When is the likely date of their return?
3.What changes took place that they were able to fly in November 2002 but not be able to fly in May 2003?”
33. The Tribunal therefore finds that Mr Manolev’s illnesses are not of the serious nature implied in the legislation and the Explanatory Memorandum of that legislation.
Temporary or permanent Absence
34. The other question in this matter is whether the Manolevs, when they left Australia in November 2002 had any intention of returning. They had already been stating they would be away more than 12 months and had already discussed, on numerous occasions extension of the portability period of Mr Manolev’s Carer Payment and Carer Allowance beyond the 26 weeks. The Tribunal finds the Manolev’s had no intention of returning to Australia before the expiry of the allowable 26 weeks. The Tribunal sees some evidence that they may not have been intending to return at all.
35. However, in his evidence Ilia states that he and his brother are permanently domiciled and employed in well paying jobs in Australia and that the parents will be joining them in Australia. There may be some significant financial and medical incentive in this because the Manolevs are getting no income while in Bulgaria and medical treatment is expensive. Returning to Australia would allow Mrs Manolev to reapply for the DSP and Mr Manolev to apply for Carers Allowance and Carers Payment. On the basis of Ilia’s evidence the Tribunal will give the Manolevs the benefit of the doubt and find that their departure from Australia was only temporary, even though it is now more than two years since they left. The extent of this time away has been partly due to their illnesses.
36. So for the above reasons the Tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P Staer
Signed: .................(sgd Nigel Wee)........................
AssociateDate/s of Hearing 18 November 2004, 29 April 2005
Date of Decision 4 May 2005
Counsel for the Applicant Applicant’s son Ilia Manolev
Advocate for the Respondent Chris Ward, Rhonda Bradley
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