Morcos and Secretary, Department of Social Services (Social services second review)

[2017] AATA 530

Morcos and Secretary, Department of Social Services (Social services second review) [2017] AATA 530 (21 March 2017)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2016/2710
GENERAL DIVISION  )

Re: Nagwa Morcos
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:               Bill Stefaniak AM RFD, Senior Member

DATE:   11 May 2017

PLACE:                     Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that:

1. the reference to “The applicant” in paragraph 26 of the decision is replaced with “The respondent”; and

2. the words “the respondent or” are inserted before the words “the applicant” in paragraph 29 of the decision.

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Bill Stefaniak AM RFD, Senior Member

Division:GENERAL DIVISION

File Number(s):      2016/2710

Re:Nagwa Morcos

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:21 March 2017

Date of written reasons:        20 April 2017

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the decision of the Social Services & Child Support Division of the Tribunal dated 3 May 2016 is set aside and substituted with a decision that the Applicant’s portability period for Disability Support Pension is extended to 7 October 2015.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – portability period – request for extension – gastroenteritis – neck and back problems – reasonable efforts to return to Australia – first available opportunity – decision set aside and a decision made in substitution

LEGISLATION

Social Security (Administration) Act 1999 (Cth) s 1218C

CASES

Alimi and Secretary, Department of Family and Community Services [2004] AATA 621

SECONDARY MATERIALS

Guide to Social Security Law

WRITTEN REASONS FOR ORAL DECISION

Bill Stefaniak AM RFD, Senior Member

20 April 2017

1. This is the matter of Nagwa Morcos and Secretary, Department of Social Services, matter 2710 of 2016. 

2. In this matter, Mrs Morcos migrated to Australia from Egypt and after working for many years was injured and has been in receipt of a Disability Support Pension since 2000.  She had to go back to Egypt for family reasons and had not been back for quite a while. She arranged to go back on 1 September 2015, returning to Australia on 29 September. 

3. Her flights leaving Australia were on 1 September, and leaving Cairo on 27 September, which is well within the period in which a person on a Disability Support Pension can go overseas and still receive their pension.  However, after a period of 28 days, the rule is that unless there are some exceptional circumstances, a person will have their Disability Pension stop, and then reactivated once they return to Australia. 

4. Mrs Morcos gave evidence that she started feeling unwell on about 18 September.  Being worried that, because of the acute gastroenteritis she was suffering she would not be able to return to Australia and leave Cairo on 27 September as planned, she made inquiries with Oman Air, who she was travelling with, about returning at a later time.  They informed her that she would not be able to return for about another month, i.e. on a flight that would get her back to Australia on 28 October.

5. After some initial attempts to see a doctor, she managed to see a doctor (Dr  Habib) which her family arranged, on 25 September 2015.  She was prescribed some medicine and rest. In evidence given in earlier proceedings, she stated she was basically flat on her back for the first three days after seeing the doctor and then needed a further two days recovery.  After a five-day period, namely until 30 September, she felt a lot better.

6. It seems that did not last, and at some stage, and it would appear to be probably early October (and certainly there is no evidence to suggest it was in September), she realised that she was not, in fact, recovering fully.

7. It appeared that her ailment had also become something to do with the condition which is what she got her Disability Support Pension for, that is, neck and back problems.  She attended, on 9 October 2015, another appointment with Dr Habib, complaining of lower back pain and neck stiffness.  The doctor stated that she required physiotherapy and bed rest for another two weeks.  He had previously recommended, on 25 September, bed rest and rehydration.

8. It should be noted that on 29 September 2015, the Department sent a letter to her, notifying her that her Disability Support Pension payments had been suspended. 

9. She attended, on 25 October, a further doctor’s appointment, complaining of ongoing lower back pain and neck stiffness.  Dr Habib indicated that she certainly could not travel, and he reported that she required physiotherapy and bed rest for a month. 

10. She again on that day, 25 October, changed the date of her return flight to 22 November 2015.  It appears that there was some improvement and by 10 November, the applicant was able to arrange an earlier flight, which got her back to Australia on 17 November. Her Disability Support Pension was restored from that date. 

11. She requested, on 4 December 2015, an extension to her portability, and that was rejected because her circumstances were deemed not to be of an extreme or an emergency nature.

12. She sought a review in relation to that.  The reviewing officer altered the decision.  He extended the portability period by one day, to 30 September 2015.  The reason being that evidence had come before him that she could not have possibly travelled for five days after seeing the doctor on 25 September, but from the 30th it would appear she would be able to travel.  It was deemed by the reviewing officer that further extensions were unable to be considered.

13. That decision was affirmed on 3 May 2016 by the AAT1, which rejected the applicant’s request for a further extension.  On 23 May 2016, she applied to this Tribunal for a review of the AAT1’s decision, her reasons being the portability period was extended due to gastroenteritis, which both Centrelink and AAT1 agreed was an eligible condition to extend the portability period.  The first possible date of travel was 25 October 2015, and it was requested that the portability period be extended to this date.

14. The legislation in relation to this matter is specifically section 1218C of the Social Security (Administration) Act 1999 (Cth), and that is the provision I need to have regard to.

15. Firstly, I must say, and I thank the respondent for further submissions after I requested them in this matter, that the respondent restates that regard must be had to the Guide to Social Security Law (the Guide).   The Guide is also replicated in a number of cases.  The Guide, in section 7.1.2.10 (and the Guide is something that the Tribunal has to have regard to, unless there are cogent reasons to the contrary) says:

    It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia.  It is an exception that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia at the first available opportunity (e.g. where an extension is allowed due to illness, the recipient is required to return immediately when their health allows this) - extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia.

16. This part of the Guide has been quoted in a number of cases. 

17. No one disputes that this is a serious illness, and that has been accepted.  The other matter in relation to this, which was raised during the hearing, is a question of problems with the neck and her back.  I am certainly satisfied that in relation to the neck and the back, portability cannot be extended unless the event occurred or began during the period of absence.

18. It appears it is a little vague when the neck and back problem really came about.  It is quite possible that the neck and back were a problem when the applicant had the gastroenteritis, and it is quite possible that that was actually in fact in late September.  However, there is no medical evidence to that effect.  It is merely a possibility, and the applicant indicates that effectively she recovered from the gastroenteritis but things still were not quite as they should be, and that is why she visited the doctor again on 9 October.

19. It would seem on the evidence available to me, that it most likely became apparent that the back and neck problems were causing her some difficulties a short time prior to 9 October, that would be in early October.

20. The rule is that the event has to at least begin during the period of absence.

21. Accordingly, there is no problem with the gastroenteritis, but there are problems with the back and neck pain.  It would appear that these were not apparent until detected in early October.

22. There is nothing to indicate (and there would have to be something to indicate that I could be satisfied on the balance of probabilities) that the neck and back pain problems began during the period of absence, that is, between 1 September and 29 September.  So, unfortunately, in relation to that particular ailment, she cannot rely on it to cover her situation in this case.

23. I note what she is seeking appears to be a portability extension up until 25 October, or thereabouts.  In other words, the first extension of her plane ticket that she managed, and which she paid 600 Egyptian pounds for.  In fact, it seems she has paid that amount on at least two occasions, possibly three in relation to changing the dates of her flights.  Six hundred Egyptian pounds is about $100 Australian dollars.  So I note that.

24. Unfortunately, she is restricted, and she seems to appreciate it, to that first period, and that is what I actually have to look at.

25. There is no doubt that this has been accepted as a serious illness, as something which would have enabled her to extend the portability, and it already has been extended by one day.  The issue I have to look at, therefore, is the issue of whether it could be said she had made all reasonable efforts to return to Australia at the first available opportunity; and, indeed, what is the first available opportunity.

26. The applicant has provided some assistance in relation to case law, and that is the matter of Alimi and Secretary, Department of Family and Community Services [2004] AATA 621. In that case, Mr Alimi was on a Disability Support Pension. His wife, I believe, was on a carer’s pension. They had interests in Bulgaria as well as Australia, they had been here for quite a period of time. At the relevant time they were in Bulgaria. It was not disputed that Mr Alimi could not return to Australia because of his medical problems. He, however, did defy his doctor’s advice and returned to Australia on 27 January 2004.

27. His wife, who was his carer, did not.  The reason being that she could not pay the cost of returning at that point.  They were in Bulgaria for a number of months.  Unlike the current case where the applicant had a return ticket which she just had to try to get extended, the Alimis did not, and Mrs Alimi, who should have normally accompanied her husband, did not return because she, it seems, could not afford the cost at that stage.

28. The evidence there indicated that the applicant, Mrs Alimi, would have accompanied Mr Alimi but for the lack of funds, and it could not be said her inability to return to Australia continued to be because of the serious illness of the husband.  She was meant to go back with him.  She did not.  She could not afford it.  He went back.  He took a risk.  He went back.  She would be covered up until that date, but fundamentally it was expected that she would have gone back with him, otherwise she would forfeit her pension, and the type of pension she was on was one of those which could be forfeited.

29. Accordingly, while she was extended from December 2003 to 27 January 2004, that extension was dependent on when the person she was caring for, namely her husband on the Disability Support Pension, returned to Australia.  So that is a case of some assistance, but not directly in point unfortunately and at any rate it does not particularly help the applicant.

30. I note that the applicant was able, on 10 November, to arrange an earlier flight. At that stage she had recovered sufficiently to return to Australia.  She could only get a flight back several days later which got her back in Australia on 17 November 2015.  The ticket she had was capable of being extended, dates changed, on payment of a fee, as I have already discussed.

31. The evidence given by Oman Air was that, yes, dates can be changed.  It all depends on availability and certainly it is quite possible for dates to be changed. Indeed, you can ring up one day and get the ticket the next day.  Regarding some additional information provided on 23 February 2017 from Oman Air Australia to Mr Lones, Mr Lones had asked the airline a number of written questions. He asked:

    ·During the relevant period (September 21 to October 25, 2015) would flights at the stated ticket level have been readily available from Cairo to Sydney,  and if so:

    oHow frequently would those flights be (e.g. daily, weekly, etc)? 

    oWhat would be the expected timeframe in which a person would be able to book the next available flight at this ticket level?  (Eg within a day, two days, etc.). 

    ·At what ticket levels generally would flights have been available from September 21 to October 25 2015. 

    ·Does Oman Air operate independently in respect to flight availability, dependant on which country you were changing your ticket in?

32. Oman Air responded:

    Hello Andrew, 

    In line with industry practices, Oman Air sell their products dynamically, meaning both airfares and availability for any given journey can change at any given time of day.  Availability is not market specific, but based on global demand and booking levels at any given time.  As per our previous advice we can confirm the frequency of flight connections [Cairo to Sydney] to be daily, but it is impossible for us to advise the ticket levels for a specified past sale period such as you are requesting.  Subject to flight availability a customer could potentially rebook anytime up until check in closes on the day of departure. 

    Kind regards,…

33. So, it all depends on flight availability and it is impossible to say now what the situation was during the time in question.

34. Theoretically one could change a flight on a days’ notice .That is what the respondent relied on.

35. The other evidence I have to go on is the evidence that it was a busy time.  Certainly September was.  It was the time when pilgrims were going to Mecca and coming back from Mecca.  Therefore, one would expect it would be a little bit harder than normal perhaps for a seat to become available.  But, conversely, seats do become available because people might, for example, like the applicant, get sick and they cannot travel.

36. So that is all a little bit up in the air. There is no further evidence of any assistance except the evidence that on 10 November 2015, the applicant was able to change her booking to a flight that got her back to Australia within seven days, and that is the other concrete piece of evidence I do have. 

37. I certainly would not think the law and the guidelines are such that one would expect a person in the applicant’s position to buy a fresh ticket to get her back at the first available opportunity, which might be available in a day or two, because that would cost probably as much as her initial return ticket. Someone on a Disability Support Pension would clearly not be able to afford that, and that probably would be over and above the call of taking all reasonable efforts to return to Australia. 

38. The key word in the guideline is “reasonable” and the other key words, “at the first available opportunity”.  So did she take all reasonable efforts to return to Australia, and what was the first available opportunity?  Unfortunately, I am restricted to that first period of the gastroenteritis, and I have the other factors of, firstly, Oman Air being available on every day potentially; but, secondly, it clearly being unlikely that that would be possible; and, thirdly, the only definite evidence I have of when it is tried (and there is no evidence that the applicant was ringing up daily trying to change the flight beforehand as she was not feeling well; she continued not to feel well until after 25 October) is when on 10 November she is able to arrange a flight to get her back to Australia in seven days’ time.

39. She had changed her flight from September to late October.  Then in early October, the problems she had were not going away, and it was clear that this was now relating to her main condition which she got a pension for in the first place, and that is a bad back and spinal and neck problems.  Clearly she needed further medical assistance then and there.  Unfortunately, as I said, that condition was outside the portability period that governed this particular matter, that being the September period.

40. So clearly she was not in any state, it would seem, probably up until late October, and even a bit beyond that, to realistically come back to Australia. 

41. It  would have been different had she been diagnosed with the back and neck problems affecting her in September as well, during the normal 28 day period I have spoken of.  Had that been the case, clearly she would be in a very strong position, and probably her portability period may well have been extended all the way up until 17 November, because had it been diagnosed effectively prior to 29 September and she had further medical certificates, that was the first available time she could get back.

42. But, unfortunately, the one period that is relevant is from 21 September to 28 October.

43. I also make comment that I do not accept the respondent’s argument that she really should have waited until the 25th to extend the period.  I do not think that would have necessarily meant any difference at all in terms of ticket availability.  I think it was practical for her, rather than to lose her airfare, as soon as she felt that there were problems, to actually try to change the ticket and try to get the next available flight for that class of ticket, given the medical problems she had, and that was what she did  on 21 September.

44. I do not think anything really turns on that.  She saw a doctor when she could, on the 25th, and events flowed from there.  So I do not particularly think it would have helped, had she waited until 25 September.  In fact, the period she extended the ticket to might have even been further than 28 October. We just do not know, but I do not think a huge amount turns on that.

45. Accordingly, what I actually have to go on is the fact that when she turned her mind to it and first attempted to bring her latest departure date forward, she was able to get one within a seven day period.  Accordingly, because of that fact, and the fact that it appears that from 30 September, the acute gastroenteritis had ceased as far as that being a cause of her inability to travel, whilst I am unable in this instance to extend the period to 25 October, as was requested, I can certainly extend it a further week to 7 October.

46. I do so on the basis that, firstly and unfortunately for her, she is restricted to the gastroenteritis episode. Secondly, that whilst Oman Air have daily flights, there is no evidence to indicate that she would be able to pick up a flight the day after she rang and, therefore, got back any earlier.  The only evidence we have in relation to that is her successful attempt on 10 November to bring her ticket forward, that got her back by 17 November.  That is what I actually have to go on.  I think in the circumstances, that fully covers the Guide which states that a person must make all reasonable efforts to return to Australia at the first available opportunity.

1. Accordingly, the first available opportunity after she is able to travel due to the illness, which in this case is the acute gastroenteritis, subsiding sufficiently to enable her to travel would be seven days after 30 September.  So in relation to that, I am sorry I cannot extend it as long as the applicant requests.  I am able on the basis of the above, to extend it a further seven days, which I do. 

   DECISION

2. So the formal order of the Tribunal will be the decision of the AAT1 of 3 May 2016 is set aside, and the portability period is extended until 7 October 2015.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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Associate

Dated: 20 April 2017

Date(s) of hearing:	21 February 2017 & 21 March 2017
Applicant:	In person and by telephone
Solicitors for the Respondent:	A Lones, Department of Human Services