Materek and Secretary to the Department of Family and Community Services

[2002] AATA 344

DECISION AND REASONS FOR DECISION [2002] AATA 344

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1478
GENERAL ADMINISTRATIVE  DIVISION
  Re:         KRISTYNA MATEREK
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             8 April 2002
Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

1. SOCIAL SECURITY - Disability Support Pension - extension of portability period - whether severely disabled at the time of departure from Australia - whether applicant unable to return to Australia
   Social Security Act 1991 s23(4B), s1217, s1218C

REASONS FOR DECISION

8 April 2002  G.D. Friedman, Member

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 17 October 2001, which affirmed a decision of Centrelink dated 13 August 2001.  In that decision Centrelink refused to grant a discretionary extension of Disability Support Pension (DSP) to the applicant, and decided that she was not severely disabled at the time of her departure from Australia on 11 October 2000.
   BACKGROUND

2. The facts are not in dispute.  The applicant was in receipt of DSP from 5 October 1995 (anxiety neurosis).  On 11 October 2000 she left Australia for Poland with a return ticket for 16 January 2001, so her level of disability was not assessed.

3. On 10 April 2001 she had been overseas for 26 weeks and asked for an extension of DSP.  This was rejected because there was no evidence that her medical condition had deteriorated to such an extent that she could not return to Australia.  She was assessed as not being severely disabled, as she was considered to be capable of working at least 8 hours a week at the time of leaving Australia.
   EVIDENCE

4. The applicant stated that she would have returned sooner if she had been aware that her payments would cease.  She said that she worked one day per week before her departure but not on a regular basis.  She said she suffers from hypertension, arthritis, pain and panic attacks.

5. A letter from the applicant's treating doctor, received on 17 July 2001, stated that he had never treated her for anxiety or neurosis.  He referred to hypertension, heart disease and osteoporosis.
   CONSIDERATION OF THE ISSUES

6. The relevant legislation is the Social Security Act 1991. Section 1217 provides that a person may be paid DSP while outside Australia for up to 26 weeks, or longer if he or she was severely disabled at the time of departure. Section 23(4B) defines severely disabled as being unable to work for the next 2 years up to 8 hours per week. Section 1218C enables the Secretary to the Department of Family and Community Services to extend the portability period if the person is unable to return to Australia because of events such as serious illness.

7. The applicant was working one day a week before her departure for Poland on 11 October 2000.  Her treating doctor stated that he did not treat her for anxiety or neurosis, and there is no medical evidence that would indicate that she was incapable of working for 8 hours a week at the time of her departure.  Therefore, the Tribunal finds that at the time of her departure the applicant was not severely disabled.

8. There is no evidence that while overseas the applicant suffered a serious illness or other event that prevented her from returning to Australia.
   DECISION

9. The Tribunal affirms the decision under review.

   I certify that the nine [9] preceding paragraphs are a true copy of the reasons for the decision of
   G.D.Friedman, Member

   (sgd)       Olympia Sarrinikolaou
                 Clerk

   Date of hearing:  8 April 2002
   Date of decision:  8 April 2002
   Solicitor for applicant:                  Nil - Self-represented
   Solicitor for respondent:              Nil - Ms R. Bradley, Advocate with Centrelink