Mohamud and Secretary, Department of Social Services (Social services second review)
[2017] AATA 642
•10 May 2017
Mohamud and Secretary, Department of Social Services (Social services second review) [2017] AATA 642 (10 May 2017)
Division
GENERAL DIVISION
File Number
2016/1936
Re
Ibrahim Mohamud
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member
Date 10 May 2017 Place Melbourne The decision under review is affirmed.
..................................[sgd]......................................
D. J. Morris, Member
SOCIAL SERVICES – Disability Support Pension (DSP) – portability period – intentions of applicant – family illnesses – whether events occurred during permissible period which prevented return – application of discretion to extend period – decision affirmed
Legislation
Social Security Act 1991, ss 94, 1217, 1218AAA, 1218C
Cases
Re Gowany and Secretary, Department of Social Services [2015] AATA 633
Re Hasan and Secretary, Department of Employment and Workplace Relations [2007] AATA 1945
Re Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989
Re Majidi and Secretary, Department of Education, Employment and Workplace Relations [2007] AATA 2050
Re Manolev and Secretary, Department of Family and Community Services [2005] AATA 298Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (2012) 200 FCR 464
REASONS FOR DECISION
D. J. Morris, Member
10 May 2017
BACKGROUND
Mr Ibrahim Mohamud, the Applicant in this matter, was granted Disability Support Pension (DSP) in May 2012. On 16 June 2015 his DSP was cancelled by the Department of Human Services (the Department) on the grounds that he was no longer qualified for the benefit because he was absent from Australia and had been absent for more than four weeks in the preceding 12 months. Mr Mohamud sought a review of the original decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. On 22 September 2015 the ARO wrote to inform the Applicant that he had found that the decision to cancel the DSP on 16 June 2015 was correct and that the decision to reject Mr Mohamud’s request for a portability extension was also correct.
Mr Mohamud sought a review by the Social Services and Child Support Division of the Tribunal (AAT1). On 8 March 2016 AAT1 affirmed the original decision.
Dissatisfied with that decision, Mr Mohamud sought a review by the General Division of the Tribunal. The hearing was held on 21 February 2017 by telephone. Mr Brendan Lacota from Moonee Valley Legal Service represented the Applicant. Ms Ailsa Bramley, a solicitor from the Department of Human Services, represented the Respondent Secretary. Mr Mohamud gave evidence and was cross-examined. In considering the case, the Tribunal must decide whether the decision to cancel the DSP from 16 June 2015 was correct and whether the Secretary of the Department should have exercised discretion to permit an extension of portability of Mr Mohamud’s DSP because a criterion set out in the relevant law was met.
The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.
The following documents were also admitted into evidence:
·Applicant’s Statement of Facts, Issues and Contentions dated 30 August 2016 and an appendix (Exhibit A1);
·Witness Statement of the Applicant, dated 15 June 2016 (Exhibit A2).
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has –
(a)a physical, intellectual or psychiatric impairment;
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
Mr Mohamud was granted DSP on 18 May 2012 as he met the qualifying criteria at that time.
Under section 1217(1) of the Act and the Table at the end of that section, the payment of DSP to a person while he or she is absent from Australia is limited to four weeks (i.e. 28 days) in the preceding 12 month period. Since 1 January 2015 this has been the statutory period allowed for DSP recipients who have not been granted unlimited portability, and is called the ‘maximum portability period’. Section 1217(4) of the Act defines the ‘portability period’ where the maximum portability period is limited as beginning on the first day of the absence for which the absence is not an ‘allowable absence’ under section 1217(2) and the Table, and ending at the end of that period.
Section 1218AAA of the Act provides a power for the Secretary of the Department to make a written determination that a particular person’s maximum portability for DSP is an unlimited period if, inter alia, the Secretary is satisfied that the persons impairment is a severe impairment within the meaning of section 94(3B) of the Act. This means that the person has been assigned 20 or more points on one Table in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
It was common ground between the Applicant and the Respondent that Mr Mohamud does not have a severe impairment and therefore the provisions of section 1218AAA do not apply to him.
The Applicant, in his Statement of Facts, Issues and Contentions (Exhibit A1), contended that the review of this matter should focus on section 1218C of the Act. Mr Lacota contended that section 1218C should be interpreted broadly to incorporate circumstances where the person has a practical inability to return.
The law
Section 1218C of the Act relevantly states:
“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.”
What happened?
On 15 May 2015 Mr Mohamud informed the Department of his plan to travel to Nairobi, Kenya. He originally planned to depart for Nairobi on 19 May 2015 and return to Australia on 20 August 2015. The Tribunal had before it a copy of the Applicant’s itinerary issued by his travel agent on 6 May 2015. The itinerary detailed flights in the name of Mr Ibrahim Mohamud departing Melbourne on 19 May 2015 and arriving in Abu Dhabi for a stop-over on 20 May 2015, and then departing Abu Dhabi on 23 May 2015 and arriving in Nairobi on 23 May 2015. The itinerary showed return flights, departing Nairobi on 20 August 2015 and returning to Australia via Abu Dhabi, arriving in Melbourne on 21 August 2015.
Mr Lacota submitted that, on or around the first week of June 2015, the Applicant’s sister, Ms Adar Sheikh Mohamud (Ms Sheikh) fell while boarding a bus in her home country of Somalia and fractured her femur. She was transferred to Kenya and hospitalised at Madina Hospital in Nairobi for an operation as a result of the injury.
The Applicant contended that he was required to remain in Nairobi to care for his sister as there were no other family members present to assist her. Mr Lacota said that Mr Mohamud has been the sole provider of “her support in terms of finance, transport, spiritual and moral support.”
On 25 July 2015 Ms Sheikh was discharged from Madina Hospital into the Applicant’s care “due to financial constraints.” Sometime in late 2015, Mr Mohamed’s uncle, who had apparently been in Nairobi, returned to his home in Somalia because, in the submission of the Applicant, he could not afford treatment in Kenya. He sadly passed away in November 2015. Mr Lacota said that this gentleman was the only other family that Mr Mohamud and Ms Sheikh had living at that time in Nairobi.
On 5 November 2015, Ms Sheikh developed, according to the 29 January 2016 and 23 February 2016 reports from her treating doctors at Medina Hospital “hemiplegia (right sided) due to stroke secondary to hypertension.”. Even though these reports were not contemporaneous with the apparent diagnosis, the Tribunal accepts them as attesting to the Applicant’s sister’s medical condition.
Mr Lacota submitted that the evidence of Ms Sheikh’s hospitalisation and deteriorating health as a direct result of her fall is sufficient to satisfy the requirement of ‘serious illness’ in section 1218C(1)(b) of the Act.
The Applicant’s representative drew the Tribunal’s attention to the decision in Manolev and Department of Family and Community Services [2005] AATA 298 in which Member Staer considered what was meant, in the context of section 1218C, by the term ‘serious illness’, at paragraphs [28] and [29]:
“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.”
“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’.”
Mr Lacota submitted that the Applicant’s sister first had a fall and then developed other medical conditions and that AAT1 was wrong to discount her hypertension in terms of satisfying section 1218C on the basis that it was a pre-existing condition, because had she not sustained the injury to her femur, the hypertension, in the opinion of her treating doctors, would not have worsened and resulted in hemiplegia. Mr Lacota urged the Tribunal to take the view that there was a:
“‘cascading of medical issues experienced by Ms Sheikh [which] have culminated in a “serious illness” to satisfy the provision and left her unable to look after herself.”
Mr Lacota also drew the Tribunal’s attention to the decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (2012) 200 FCR 464, wherein Flick J (Reeves J concurring) said at 487:
“A practical inability may arise by reason of a myriad of circumstances, extending from financial circumstances to the need to provide emotional comfort to a ‘family member’ who has been involved in a serious accident or illness.”
The Respondent contended that Mr Mohamud’s first request for an extension of the portability period was made in a telephone call on 6 August 2015, when he advised the Department that his return was delayed due to the recent illness of his uncle. Mr Mohamud subsequently made a number of contacts with the Department. On 12 August 2015 Dr S. Muthiga from Madina Hospital in Nairobi provided a letter that advised that the Applicant’s sister had had an operation on 10 June 2015 and was in a wheel-chair and required assistance from the Applicant for two months. This letter was sent by facsimile to the Department on 16 August 2015. On 15 September 2015 Dr Muthiga wrote a further letter stating that Mr Mohamud’s sister required assistance for ‘the next two months, or until such time that she will be able to help herself’. On 11 November 2015 Dr S. Muthiga provided a letter advising:
“Mr Ibrahim Mohamud seems to be the only one who is attending to her [sic] sister; he has done this since June and personally [I] haven’t seen any other person helping the patient. Mr Ibrahim Mohamud is in stress, this is due to the illness of the sister which is getting worse, he will be required to take care of the sister for a longer period till such time that she will be able to take care of herself or Mr. Ibrahim Mohamud gets someone to help him.”
On 15 January 2016 Dr Muthiga advised in writing that Ms Sheikh was being introduced to a walking frame but would continue to require assistance for “the next about three months.”
The Respondent accepted the medical evidence confirming the hospitalisation of Ms Sheikh and the subsequent onset of hemiplegia in November 2015. The Respondent also accepted the evidence that Mr Mohamud’s sister’s admission to hospital and initial need for post-operative care arose after the Applicant left Australia.
However, the Respondent contended that the development of Ms Sheikh’s hemiplegia arose after the expiry of the portability period and after his intended return date, and that if Mr Mohamud was unable to return to Australia because of the care he was providing as a result of his sister’s hemiplegia, this arose after the portability period and, as a consequence, in the Secretary’s contention, subsection 1218C(2) of the Act therefore cannot be satisfied.
The Secretary contended that there is not the necessary connexion between the hospitalisation of Mr Mohamud’s sister and his inability to return before 20 August 2015, required by section 1218C of the Act. The Respondent urged the Tribunal to consider previous decisions in Hasan and Secretary, Department of Employment and Workplace Relations [2007] AATA 1945, wherein the Tribunal said:
“…it was his own evidence that at the time of departure he had no intention of returning to Australia within the thirteen week portability period. He could not therefore contend that it was his wife’s illness that prevented him from returning within this period…”
Mr Mohamud’s evidence
Mr Mohamud gave evidence before the Tribunal. He described how his sister fell badly when boarding a crowded bus in Somalia and she was taken to Nairobi for medical treatment. When asked about the assistance he gave her, Mr Mohamud said he helped her generally at their place of living, including pushing her wheelchair between her accommodation and the hospital and procuring food for her, as well as providing moral support.
Mr Mohamud said there is no one else in Nairobi who could have assisted her as the rest of the family are in Somalia. He said that he continued to provide his sister assistance until 26 March 2016 but had to return to Australia because he received advice from the public housing authority that he faced eviction unless he returned. When asked about who is it who now cares for his sister, Mr Mohamud told the Tribunal that he made arrangements with ‘distant relatives’ to help her.
Mr Mohamud was asked what he thought would happen to this DSP when he exceeded the four week portability period; he said he knew he “could be paid for six [sic] weeks” and that it would be suspended until his return.
Mr Mohamud told the Tribunal that the original reason he went to Kenya was to get married, but that it did not happen because when he met his intended spouse they agreed they were not compatible. He agreed under cross-examination that when he made his first contact with the Department on 6 August 2015, he referred to the illness of his (now late) uncle, even though his sister had at that stage had the accident which injured her femur, and had been hospitalised in Kenya, operated on, and discharged. He said that it did not occur to him to mention his sister’s predicament at that time to the Department because he was stressed.
Consideration
The Tribunal accepts the independent medical evidence about the injury of the Applicant’s sister, Ms Sheikh, and that Mr Mohamud cared for her while he was in Nairobi. There is, however, some contradictory evidence in this matter. Mr Mohamud, in his affirmed witness statement dated 15 June 2016, says:
I travelled to Nairobi to visit my uncle, Mr Abdi Mohamud, who was unwell and seeking medical treatment in Nairobi.
In his written submission for the Applicant, Mr Lacota stated:
On 15 May 2015, Mr Mohamud informed Centrelink of his plan to travel to Nairobi, Kenya to visit his uncle who was suffering from a heart condition.
This may reflect the Applicant’s instructions to his representative, but they are different from the Departmental file note of the telephone contact (T23, p 79), which was that the Applicant merely informed Departmental officers of his intention to travel, not the reason. The Tribunal might accept that this was an omission by the Centrelink officer, but for the fact that Mr Mohamud himself in his evidence at the hearing said that the original reason he travelled to Kenya was to meet his intended bride, not to visit his uncle.
He stated in evidence that his uncle moved from Somalia to Nairobi for treatment “around June 2015”. He said that friends advised him of his uncle’s presence in Nairobi after the Applicant had arrived in Kenya, and it was then that he sought him out.
The Departmental file note of Mr Mohamud’s contact with Centrelink on 6 August 2015 seeking an extension to the portability of his DSP (which had already been suspended) states (T23, p 78):
“CUS [the Applicant] advised he was calling from Nairobi Kenya and has been delayed in return to Australia due to recent illness of his uncle. CUS stated the uncle has recently been moved from Somalia to Kenya for treatment.”
The Tribunal had before it a letter (Exhibit A1 appendix) from Dr S. Muthiga of Madina Hospital in Nairobi dated 29 January 2016 which states, in relation to the Applicant’s sister:
“Re: Adar Sheikh Mohamud – 52 years female reg. no 62013/15
The above named was admitted at our hospital on the 10th of June, 2015 and discharged on 25th July 2015. [S]he was discharged before time due to financial constraints.”
Dr Muthiga also provided a number of other medical reports which referred to Mr Mohamed taking care of his sister and bringing her to the hospital, some of which are referred to above.
The provisions in the Act giving the Secretary discretion to extend portability because of certain stipulated events must be read in the context of the Parliament’s intentions in regard to those provisions. Plainly, they are designed to cater for circumstances where an event happens when a DSP recipient is abroad within the usual allowable travel period (i.e. four weeks in a 12 month period), and that event means, in the explicit words of the beginning of section 1218C, “that the person is unable to return to Australia.” In other words, the event and the inability of the DSP recipient to return must be linked.
Therefore, the Tribunal must look at the intention of the Applicant in regard to his travel. His airline tickets were issued on 6 May 2015, so his intended travel dates were settled, at the latest, on that date. The itinerary he provided indicates that the airline tickets for departing Australia were “not valid before” 19 May 2015 and the return flights were “not valid before” 20 August 2015.
It is therefore axiomatic that Mr Mohamud’s intention from not later than 6 May 2015 was to be absent from Australia for a period longer than the total period of four weeks allowable under section 1217(1) of the Act. On his own evidence at the hearing he travelled for matrimonial reasons not, as he said in his witness statement, to visit his uncle.
His sister’s accident occurred around 10 June 2015, according to the Applicant’s submissions and consistent with the medical reports. She was in hospital until 25 June 2015 when she was discharged. Mr Mohamud said he then arranged a ‘cheap place’ for them to live with a family friend and cared for her.
The Tribunal had before it a medical report of Dr Muthiga dated 23 February 2016 (Exhibit A1 appendix) relating to Ms Sheikh which said she:
“…developed hemiplegia on 05th November 2015. It was developing slowly and started as weakness and progressed to be such.”
Mr Lacota’s submissions that the Tribunal should treat all of Ms Sheikh’s medical circumstances as a ‘cascade’ are not, therefore, in my view supported by the medical evidence before the Tribunal. Certainly she sustained a nasty fracture, such that it was necessary to transfer her from Somalia to Kenya for surgery and other treatment. But, after this took place, she was discharged on 25 June 2015 and it was not, according to the written statement of her treating medical practitioner, until some four months later that she developed hemiplegia. It was indeed also the evidence of the Applicant in cross-examination that Ms Sheikh developed her secondary condition “three to four months” after her fall.
The Tribunal accepts Dr Muthiga’s opinion in his medical report of 28 January 2016 that to the best of his knowledge there is a connexion between the femur fracture and the worsening of hypertension and hemiplegia, but in this review, this information must be considered with the background of what Mr Mohamud’s clear intentions were, in relation to his absence from Australia.
Mr Lacota cited Mouratidis in support of the Applicant’s case. However, the decision in Mouratidis centres on how multiple absences from Australia by a DSP recipient should be treated. He also drew the Tribunal’s attention to the decision in Gowany and Secretary, Department of Social Services [2015] AATA 633. That case centred on a person who intended to be overseas for the then maximum portability period of 13 weeks when a family member became seriously ill. Gowany is distinguishable from Mr Mohamud’s circumstances because Mr and Mrs Gowany gave evidence that they were always intending to return to Australia within the portability period, except for the unexpected family illness which arose in this period and made them change their plans. The facts may be clearly contrasted in the Applicant’s case, because of the evidence of the itinerary of the airline ticket Mr Mohamud booked on 6 May 2015. His intention was always different.
In Mr Mohamud’s case, his portability period commenced on 19 May 2015 and ceased on 16 June 2015. Although his sister had her fall on 10 June 2015, when the Applicant contacted the Department on 6 August 2015 about changes in his intended date of return, he did not cite her circumstances at all. He referred to the illness of his uncle. Even if the Tribunal accepts his evidence about the care he provided for his sister after Ms Sheikh’s discharge from hospital, this event did not occur until 25 June 2015. Mr Mohamud factually was not caring for her between 10 and 25 June 2015. Mr Mohamud cannot seek to rely on section 1218C(1)(b) or (c) because the necessary connexion between the illness and the hospitalisation of Ms Sheikh and his travel plans is not there. He had bought a “non-flexible” airline ticket for a later departure date from Kenya on 6 May 2015. This was before Ms Sheikh had her fall.
If there was evidence before the Tribunal that Mr Mohamud had booked his return flight before or on 16 June 2015 and then had to change those plans because of the situation facing his sister, I might take a different view. But no such evidence was before the Tribunal. On 6 August 2015 he said his sick uncle was the reason for his changed plans. On 11 August he said his sister and uncle were very sick so he needed to “be overseas to look after them”.
The power of the Secretary under section 1218C is a discretionary one. The Parliament has couched the section that the Secretary “may” extend a person’s portability period if certain specified types of events occur. However, section 1218C(2)(a) places a mandatory requirement on the exercise of this discretion. It states:
“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.”
In Mr Mohamud’s case, it was common ground unlimited portability of his DSP is not applicable. Therefore ‘portability period’ is defined in section 1217(4) of the Act to mean the period commencing on the day of departure and, applying Item 2AA of the Table at the end of that section, ending four weeks from that date. The Tribunal takes the view, following the principles of statutory interpretation, that the Secretary’s power must be read in the context of this statutory time period which establishes the four week maximum portability period (in the preceding 12 month period) and, consistent with a number of previous decisions before the Tribunal (for example Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989, Hasan (supra), and Majidi and Secretary, Department of Education, Employment and Workplace Relations [2007] AATA 2050), finds that the proper interpretation of this discretionary power is that the stipulated ‘event’ must occur or begin in the four week period. Mr Mohamud has not satisfied the Tribunal that an event which would enliven the discretion occurred or began before 16 June 2015.
The illness of the late Mr Abdul Mohamud, the Applicant’s uncle, did not prevent the Applicant returning to Australia. Mr Mohamud’s witness statement said that Mr Abdul Mohamud returned to Somalia (at some time, the date is not given) and died in November 2015. The Applicant stated that he travelled to Kenya in contemplation of marriage, not because of the illness of his uncle.
The injury sustained by the Applicant’s sister, Ms Sheikh, did not prevent the Applicant returning to Australia before the end of his allowable portability period on 16 June 2015. She was in hospital on that date and not discharged until 25 June 2015. While the Tribunal does not dispute she developed other medical problems and they no doubt have been genuinely concerning to her brother, these other medical problems did not evince, on the written advice of her treating doctor, until 5 November 2015, and thereafter. On the proof of his own ‘non-flexible’ airline ticket, Mr Mohamud plainly never intended to return to Australia within the four week period allowed him in the Act.
The outcome will no doubt be disappointing to Mr Mohamud, but the Tribunal finds that there are no grounds for the exercise of the discretion in section 1218C of the Act in respect of Mr Mohamud’s absence from Australia, as no event contemplated by that section occurred or began during his absence that prevented him from returning to Australia within four weeks.
DECISION
The reviewable decision is affirmed.
54.
55. I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of
Mr D. J. Morris Member............................[sgd]..........................
Associate
Dated: 10 May 2017
Date of hearing: 21 February 2017 Advocate for Applicant: Mr Brendan Lacota,
Moonee Valley Legal ServicesAdvocate for the Respondent: Ms Ailsa Bramley,
Department of Human Services, Freedom of Information and Litigation Branch
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