Morched and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 584

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 584

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0883

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAYED MORCHED

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date7 August 2009

PlaceSydney

Decision The decision under review is set aside and in substitution therefor I find that Mr Morched satisfies the particular criteria nominated in section 1218C of the Social Security Act 1991, and that extension of his portability period for payment of his disability support pension to 31 October 2008 is appropriate.  

.................[sgd]...........................

Dr J D Campbell

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – overseas portability – application for extension of maximum portability period – whether serious illness of the applicant or family member, or hospitalisation or death of family member during or commencing in the period of absence from Australia prevented the applicant’s return to Australia – decision under review set aside

Social Security Act 1991 – s 23, 1213, 1215, 1217, 1218C

Re Kwon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 93

REASONS FOR DECISION

7 August 2009 Dr J D Campbell, Member

1.      Mr Morched was born in Lebanon in 1948.  Mr Morched arrived in Australia on 30 December 1968.  Mr Morched worked as a labourer until injured in a workplace explosion in 1982.  Mr Morched was granted disability support pension from 27 August 1992.

2.      On 2 June 2008 Mr Morched advised Centrelink that he would be travelling to Lebanon and expected to return to Australia within 13 weeks.  Centrelink advised Mr Morched that he would receive disability support pension for the period he had nominated, and that such pension might be reduced or stopped if he remained outside Australia longer than 13 weeks, as a period of 13 weeks is the maximum portability period for which a recipient of disability support pension may be paid while the person is outside Australia.

3.      Mr Morched is detailed as having the following medical conditions prior to leaving Australia, with such conditions having been considered in the granting and continuance of his disability support pension over time (T17, T18, T21):

·Cervical, thoracic and lumbar spondylosis

·Depression

·Migraine

·Obesity

·Non-insulin dependent diabetes, with some instability

·Hypertension (unstable)

·Carpal tunnel syndrome (bilateral)

·Tinnitus and hearing loss

·High cardiac risk factors (obesity, hypercholesterolemia)

·Chest pain, heart trouble and difficulty breathing.

4.      On 21 August 2008, Centrelink received a fax of a certificate dated 11 August 2008 from Dr Walid, a cardiologist in Lebanon, stating that Mr Morched suffered from paroxysmal nocturnal dyspnoea, obesity, NIDD, high blood pressure and that he was a former chain smoker.  Centrelink advised Ms Elias (Mr Morched’s nominee) that they needed further details as to particulars of what event stopped him from travelling, whether he had been hospitalised and what treatment and progress had occurred since 11 August 2008.

5.      On 1 September 2008 Centrelink wrote to Mr Morched advising him that his disability support pension had been stopped because he was still overseas.  Further, on 1 September 2008 Centrelink received an updated letter from Dr Walid, in which he stated that Mr Morched was a victim of severe sleep apnoea syndrome, with a past history of diabetes, hypertension and was overweight.  Dr Walid noted that Mr Morched needed bronchodilators with oxygen at night and diet for weight loss.  Dr Walid concluded that Mr Morched needed two months recovery time for treatment and weight loss before travelling back to Australia.  Dr Walid, in a note dated 11 August 2008, stated that Mr Morched was not able to travel and needed to rest for two months before travelling because of severe respiratory insufficiency, with hypertension, diabetes and sleep apnoea.  Dr Walid also ordered laboratory tests and provided some electrocardiographic tracings.  Centrelink spoke with a medical practitioner from Health for Industry Australia who commented that the laboratory tests provided did not show any serious problem, and that there were no reports or x-rays which supported Dr Walid’s opinion that Mr Morched suffered from severe sleep apnoea syndrome.

6.      On 26 September 2008 Mr Morched requested an extension of his disability support pension payments while he remained overseas.  Centrelink responded on the same day advising that he would not be paid disability support pension for an extended period because the medical reports provided did not satisfy Centrelink that he was unable to return to Australia by air.

7.      On 7 November 2008 Centrelink received a letter dated 24 August 2008 from Dr Fenianos stating that Mr Morched was suffering from a lower respiratory tract infection with severe dyspnoea (in treatment) along with Helicobacter Pylori infection.  Dr Fenianos stated that Mr Morched needed rest and was unable to travel until his condition improved, with the estimated length of rest required being three months.

8.      On 17 November 2008 Centrelink advised Mr Morched that the decision made on 26 September 2008 had been reconsidered and that it remained unchanged.

9.      On 29 November 2008 Mr Morched returned to Australia and requested the decision be reviewed by an Authorised Review Officer (ARO).  On 24 December 2008 the ARO affirmed the original decision.  On 5 January 2009 Mr Morched lodged an appeal with the Social Security Appeals Tribunal.

10.     At the hearing on 10 February 2009, the Social Security Appeals Tribunal noted the following information which was provided by either Mr Morched, his wife and carer, Mrs Morched, or his daughter, Ms Hamad:

·In early August 2008 Mr Morched complained of dizziness, and was nervous and upset.  Mr Morched was taken to a doctor who ordered some blood tests.  Mr Morched then started to suffer from vomiting, diarrhoea and a high temperature.  His condition did not improve and persisted throughout August, September and October.

·When he eventually got to see Dr Walid he was prescribed some additional medications and directed to reduce his salt intake, lose weight and walk.

·That Mrs Morched said her husband has always had trouble sleeping, with the constant pain being the major reason for his sleep restlessness.  Further, Mrs Morched stated that Mr Morched experiences dizziness on and off with no regular pattern, has had a high temperature for a long time, has been warned by Dr Sarian (general practitioner) about his blood pressure and diabetes and has had a continual problem with his stomach, associated with vomiting once or twice before.

·That in relation to the chest infection referred to in Dr Fenianos’ letter, Mrs Morched thought it was pneumonia, but he had not been required to use a face mask nor was he treated with oxygen.

11.     On 10 February 2009 the Social Security Appeals Tribunal affirmed the decision under review.  Mr Morched lodged an appeal to the Administrative Appeals Tribunal on 3 March 2009.

12.     In support of his appeal Mr Morched provided the following further material:

·A letter from Dr Walid dated 17 April 2009, in which he attested to Mr Morched being a victim of severe respiratory illness with hypertension and a history of sleep apnoea in August 2008, while he was visiting his sick sister, Mona, who had cancer.

·A statement from Saydat Zgharta Hospital that Ms Mona Abbas Morched was admitted for treatment during October 2008.

·A death certificate extract, dated 16 April 2009, issued by the Directorate General of Civil Affairs, Lebanon, stating that Ms Mona Morched died on 15 October 2008.

·A report of Dr Attia-Soliman dated 9 May 2009 diagnosing Mr Morched with chronic dysthymic disorder.

ISSUES

13.     The particular issues in this matter are:

·Did Mr Morched suffer a serious illness, with the events occurring or beginning during his period of absence?

·Did the hospitalisation of a family member or death of a family member occur or begin during the period of Mr Morched’s absence from Australia?

·In either of the circumstances nominated, am I satisfied that Mr Morched was unable to return to Australia because of either event?

CONSIDERATION

14.     In this matter I observe that, with the consent of both parties, I have been requested to make a decision on the material in evidence before me, without recourse to an oral hearing in the matter.  Such a course of action does by itself create some limitations, in that material provided for the first time as part of the appeal process has to be dealt with on what it states, as well as the context of what has been detailed in many months of interactions between Mr Morched and/or people acting on his behalf and Centrelink officers.

15.     In addressing the issue of Mr Morched’s health, there is no doubt that Mr Morched is not in robust health and suffers from a number of chronic medical conditions.  A careful review of the material before me indicates that such conditions include spondylosis of the cervical, thoracic and lumbar spine associated with pain and difficulties in sleeping and walking; migraine headaches; bilateral carpal tunnel syndrome; depression; intermittent dizziness with some evidence of cardio-vascular accident in 2003; tinnitus and deafness; non-insulin dependent diabetes (unstable); hypertension; hypercholesterolemia; obesity; cardiac episodes, difficulty breathing and gastric episodes.  In compiling such a list, I have had recourse to the many radiographic studies in evidence, the opinions of Dr Maniam, consultant surgeon; Dr Girgis, consultant physician; Dr Sarian, general practitioner; Dr Kotagama, consultant physician, and Dr Debs  as well as documents prepared by Mr Morched and evidence given by his wife and daughter at earlier hearings.

16.     In considering the reports of Dr Walid, I note that the report of 11 August 2008 details diagnoses of severe respiratory insufficiency, hypertension, diabetes and sleep apnoea.  I note that the treatment nominated includes Allopurinol (300mg) for gout, a bronchodilator inhalant, weight loss and a two month recovery time before travelling back to Australia.  In a certificate dated 11 August 2008 Dr Walid details diagnoses of paroxysmal nocturnal dyspnoea, obesity and high blood pressure.  In an undated letter Dr Walid details diagnoses of a severe sleep apnoea syndrome, a past history of diabetes, hypertension and overweight, with Mr Morched needing bronchodilators with oxygen at night and diet for weight loss.  Finally, in his letter of 17 April 2009 Dr Walid details diagnoses of severe respiratory illness with hypertension and a history of sleep apnoea.

17.     Close scrutiny of the various reports of Dr Walid leave me with the over-riding impression that he is detailing a history of Mr Morched’s chronic respiratory and cardiac problems, with almost no material suggesting an intervening acute episode of particular significance.

18.     In considering the report of Dr Fenianos, I observe that he details Mr Morched as suffering from a lower respiratory tract infection, with severe dyspnoea (in treatment) along with helicobacter pylori infection.  This report I note was written on 24 August 2008.  I have no further understanding of Dr Fenianos’ involvement in the medical case of Mr Morched, and I am unable to form any opinion as to the acuteness of Mr Morched’s condition from the report provided by Dr Fenianos.

19.     I have considered the evidence of Mrs Morched in relation to both Mr Morched’s history of chronic illness and her description of his symptomatology during the August 2008 episode.  On the material before me I am not satisfied that Mr Morched suffered a serious illness in Lebanon in August 2008.  Further, I consider any illness he may have suffered was a continuance of symptomatology from the many chronic conditions from which he suffered prior to his departure.  In short, there is no evidence to suggest that there has been a particular deterioration in his chronic conditions, as evidenced by what he was prescribed, the absence of any hospitalisation or the need for supplementary care (for example, oxygen).

20. I note that determinations in relation to payability of social security payments while the recipient is overseas are governed by the provisions in Part 4.2 of the Social Security Act 1991 (the Act). Section 1213 of the Act extends the operation of Part 4.2 to those who receive specific social security payments, including disability support payments immediately before departing Australia. Section 1215 of the Act provides that where a payment is portable only for a limited period, payment ceases to be payable immediately after the end of the portability period. Section 1217 of the Act provides that the maximum portability period for payment of disability support pension is 13 weeks, with section 1218C(1) of the Act permitting extension of the portability period in circumstances where the Secretary is satisfied that a person is unable to return to Australia because of any of the following events:

(a)...

(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)...

21. I further note that section 1218C(2) provides that 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)...

22.     I also note that section 23(14) of the Act defines a family member in relation to the relevant person:

(a)...

(b)a sister, brother or child of the relevant person;

…

23.     In addressing Mr Morched’s circumstances in the light of the requirements of the Act as nominated, I am not satisfied that the nature of his ill health, nominated as occurring in August 2008, satisfies the requirement that it was a serious illness, as defined by the nature of the illness suffered and the treatment provided, including the absence of hospitalisation.  Further, I would conclude that the majority of his symptoms described were congruent with continuing symptoms arising from his many pre-existing chronic conditions.  In such circumstances I am unable to exercise a discretion to extend the portability period.

24.     In considering the material relating to Mr Morched’s sister I am satisfied that she was a sister of Mr Morched, and thus a family member.  I am further satisfied that she suffered from cancer, was a single person, was hospitalised and died in October 2008.  While I observe that no reliance was placed on these circumstances in Mr Morched’s endeavours to extend his portability period, this may be due to his experience in 2007, where serious illness was nominated and approved as a reason for the extension of his portability period for a period of some months.

25.     I am mindful that the circumstances surrounding the serious illness and hospitalisation of Mr Morched’s sister in the months leading up to her death in October 2008 have not been the subject of explanatory analysis in the material before me.  While I am unaware as to whether Mr Morched was aware that such circumstances could constitute a reason for seeking an extension of the portability period at the time he sought an extension in August 2008, I am satisfied that the set of circumstances outlined in respect of his sister’s illness and death would constitute events which culminated during his period of absence and, from the point of view of a reasonable person, would have been significant in his inability to return to Australia.  I would note that the case of Re Kwon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 93 is clearly distinguishable on the factual circumstances, as the circumstances in the matter to hand involved serious illness, hospitalisation and death of a family member.

26. As a consequence, I conclude that Mr Morched has satisfied the requirements nominated in section 1218C of the Act and that an extension of his portability period should be granted.

27.     In considering the period for which such an extension should be granted, I am mindful that Mr Morched’s sister died on 15 October 2008 and that Mr Morched did not return to Australia until 29 November 2008.  In such circumstances I would consider an extension of the portability period to 31 October 2008 appropriate and, in so doing, recognise the nature of the sister’s death (not acute), and aircraft booking requirements.

28. In summary, the decision under review is set aside and in substitution therefor I find that Mr Morched satisfies the particular criteria nominated in section 1218C of the Act, and that extension of his portability period for payment of his disability support pension to 31 October 2008 is appropriate.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:  ..............[sgd]...............................................................
  Associate

Date of Hearing  Decision on the papers
Date of Decision  7 August 2009