Mojaeva and Secretary, Department of Social Services (Social services second review)
[2016] AATA 931
•23 November 2016
Mojaeva and Secretary, Department of Social Services (Social services second review) [2016] AATA 931 (23 November 2016)
Division
GENERAL DIVISION
File Number(s)
2016/3218
Re
Olga Mojaeva
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 23 November 2016 Place Sydney The decision under review is affirmed.
..................................[sgd]......................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – maximum portability period exceeded – whether the applicant travelled overseas to seek eligible medical treatment – whether the treatment was of a kind that is not available to the applicant in Australia – whether the applicant had a severe impairment – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 27(3), 94(3B), 1212, 1217, 1218AAA, 1218C(1)
CASES
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Social Security and Howse [1993] AATA 231
Younan and Secretary, Department of Employment and Workplace Relations [2006] AATA 738
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms N Isenberg, Senior Member
23 November 2016
BACKGROUND TO THE APPLICATION
The Applicant, Olga Mojaeva, has been paid the disability support pension (DSP) since 4 December 2009.
On 7 July 2015 the Applicant travelled to India, returning to Australia on 22 July 2015 - an absence of 15 days.
On 1 March 2016, the Applicant notified Centrelink of her intention to travel overseas on 16 March 2016 and to return to Australia on 31 March 2016. Centrelink decided that the Applicant’s DSP would be suspended on 30 March 2016 but restored on 31 March 2016 (the original decision).As the Applicant had previously left Australia on 7 July 2015 for a period of 15 days, she was considered to be eligible to have her DSP continued during her proposed overseas absence only for the period 16 March 2016 to 29 March 2016, that is, 13 days. This was based on a portability period of 28 days in a 12-month period. That decision was affirmed on internal review and on review by the AAT1. On 21 June 2016 the Applicant applied to this Tribunal for a review of the AAT1 decision.
LEGISLATIVE FRAMEWORK
From 1 January 2015 the general portability provisions for DSP changed and reduced from being payable for six weeks whilst overseas, to being payable for a maximum of four weeks during a 12-month period: s 1217 of the Social Security Act 1991 (the Act).
There are exceptions to the maximum portability period provided by s 1217. The relevant exception is that the travel was for “eligible medical treatment”. Section 1212 of the Act defines “eligible medical treatment” as being “medical treatment of a kind that is not available to the person in Australia”.
The Guide to Social Security Law (the Guide) at paragraph 7.1.2.20 repeats that definition and provides some clarification that the eligible treatment should be “guided by the opinions of registered Australian medical practitioners”.
The Act also provides in s 1218C(1) that the period may be extended under certain conditions when the individual is unable to return to Australia, none of which apply to Ms Mojaeva.
Unlimited portability is also available if the person has a severe impairment (within the meaning of s 94(3B)) which will continue for at least the next five years such as would prevent the person from performing any work independently of a program of support: s 1218AAA. Where reassessment of the eligibility for DSP is required in order to establish unlimited portability, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) in force on the day notice was given are to be used in the assessment: s 27(3) of the Act.
CONSIDERATION
The issue to be determined is whether the applicant is able to be paid DSP for 30 March 2016 while she was overseas.
Did the Applicant travel overseas for eligible medical treatment?
In relation to the meaning of “eligible medical treatment” as defined, I was referred to Secretary, Department of Social Security and Howse [1993] AATA 231, in which the Tribunal determined that whether medical treatment is of a kind that is not available in Australia must be decided on an objective basis, and not on the perception of the applicant.
I was also referred to Younan and Secretary, Department of Employment and Workplace Relations [2006] AATA 738 (Younan), which Ms Mojaeva said was different to the present matter, because, in that case the applicant had been injured overseas.
Mr Younan had travelled overseas specifically for dental treatment because it was “cheaper and more accessible to him”. The principles in Younan are relevant to the present matter. There, Member Perton considered the term “eligible medical treatment”, and found at [15] that:
Section 1212 of the Act requires that the medical treatment for which the person went overseas is medical treatment of a kind that is not available to the person in Australia. While the dental work required by Mr Younan may well have been more expensive and/or may have been delayed had it been undertaken in Australia, there is no evidence that treatment of that nature was not available to him in Australia. Hence, the Tribunal finds that the medical treatment in Thailand does not meet the narrow definition of that term in s 1212 of the Act. [Original emphasis].
The Guide at paragraph 7.1.2.20 provides that “eligible medical treatment” could include “specialised or new types of surgery such as transplants or other kinds of treatment”. Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Ms Mojaeva provided a ‘Treatment Plan’ from a clinic in Kolkata. It essentially was a quote for work which, she said, was ultimately done. While the quote was in medical/dental jargon it clearly referred to ‘implants’, ‘crowns’ and ‘bridges’ which, Ms Mojaeva said, was at least part of the treatment she had received. There was no evidence that the type of dental treatment is not undertaken in Australia, and consequently that it was not available. Further, there was no evidence of a recommendation or referral from any health professional in Australia for that treatment to be undertaken overseas.
Ms Mojaeva’s main contention, though, was that she understood there to be significant delays in the public healthcare system and consequently was left with no option but to obtain treatment elsewhere. Her evidence was that in March 2014 she had sought a dental appointment and was told to await a letter. By the time of her appointment in December of that year she said she had serious problems but was told to await another letter for her appointment. In the meantime, she was provided with a syringe to irrigate her gum under the failed bridge, but, she said, she already had a foul-smelling bloody discharge. In January 2015, she awoke with a red swollen eye on the same side as her dental problem and believed it was related to her dental problems. She attended the Emergency Department of Canterbury Hospital, but no obvious infection in her mouth was observed and her eye complaint was treated with medication. In March 2015, she obtained an appointment after two weeks and was treated at the Sydney Dental Hospital and, amongst other treatment, roots were extracted. No replacement bridge was provided and, she said, she was told she would have to wait nine months for an appointment. When she was not contacted, she took no steps to obtain a further appointment and continued to wait for that appointment to replace the missing bridge. She also said the delay had affected her ability to obtain proper nutrition and had been responsible for some additional gastro-intestinal complaints which were subsequently diagnosed. However, she did not provide any medical evidence in support of this contention.
The Respondent was unable to point to any authorities where, specifically, delay in availability had been addressed in the context of s 1212. I note, however, that in Younan a considerable waiting period to access public dental treatment was a factor considered by the Tribunal. I agree that, notwithstanding a delay in obtaining the treatment, it remains that such treatment was in fact available in Australia.
Ms Mojaeva expressed dissatisfaction with the public health system generally and claimed she was not receiving appropriate treatment as a public patient. She said, for example, that she had received treatment as a public patient at Campsie, where there had been a widespread patient scare because of sterilisation failures. She said she had been sent home from Canterbury Hospital because there were no dental facilities there which, she inferred, may have been why the connection between her eye condition and her teeth was not made. This, however, is at odds with the discharge summary.
Ms Mojaeva said that she travelled to India for dental work because she could not afford private treatment, which she understood would have cost her $20,000, although there was no evidence in support of that contention. Ms Mojaeva provided a number of receipts for the dental work done, which when converted to Australian dollars, was less than $5,000. She said that her two trips to India for treatment, including airfares and accommodation, had cost her about $10,000.
I accept that Ms Mojaeva felt she had legitimate concerns about the delays in the public health system and the overall level of care it provided in any event. Her alternative was to privately have the treatment she said she required, which she could not afford. I accept that she regarded the delay as intolerable and took matters into her own hands by seeking treatment overseas. However it remains that the necessary treatment was available in Australia, albeit either with some delay or at a cost.
Did the Applicant, at the time of her travel, have a severe impairment?
A severe impairment is one that has been given 20 points or more under a single Impairment Table. Ms Mojaeva has not undergone a medical assessment under the current Impairment Tables in order to determine whether she has a “severe impairment” as currently defined by s 94(3B) of the Act and the Impairment Tables. She denied that she had refused to undergo an up-to-date assessment as notes relevant to the original Centrelink decision suggested. Ms Mojaeva contended that she has ‘dozens’ of conditions, but in the absence of assessment under the current provisions, it is not possible to conclude that she has a severe impairment.
CONCLUSION
I have found the Applicant did not travel overseas to undertake “eligible medical treatment” as defined and, further, that there was no evidence that the Applicant has a “severe impairment” as defined. The Applicant’s maximum portability period is therefore limited to 28 days in any 12-month period. As the Applicant was overseas for 15 days in July 2015, she was entitled to be paid DSP for a further 13 days for her absence in March 2016. As she left Australia on 16 March 2016, she was entitled to be paid DSP up to and including 29 March 2016, and is not entitled to be paid for 30 March 2016, as, on that date she had exceeded her maximum portability period of 28 days in a 12-month period.
MS MOJAEVA’S CRITICISMS ABOUT CENTRELINK’S CONDUCT
Ms Mojaeva was critical of many aspects of her dealings with Centrelink about this, and other, matters. These, however, were not relevant to the present review.
Having said that, I accept that Ms Mojaeva may not have been informed by Centrelink that she could only travel overseas for a total of 28 days in a 12-month period. She claims that, had she been so informed, she would have cut short her travel by a day so as to ensure continuity of her DSP. I observe that her final treatment in India appears to have occurred on 28 March 2016 and it is speculative as to how readily her travel might have changed, given the dental schedule, flights, and the many other contingencies that would have impacted upon the capacity to make changes. It remains though, that, objectively, she exceeded her overseas travel entitlement.
DECISION
The decision under review is affirmed.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ..................................[sgd]......................................
Associate
Dated 23 November 2016
Date(s) of hearing 10 November 2016 Applicant In person Solicitors for the Respondent C Juarez, Department of Human Services
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