Mortimer and Secretary, Department of Social Services (Social services second review)
[2016] AATA 443
•29 June 2016
Mortimer and Secretary, Department of Social Services (Social services second review) [2016] AATA 443 (29 June 2016)
Division
GENERAL DIVISION
File Number
2016/0397
Re
Stephanie Mortimer
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 29 June 2016 Place Melbourne The Tribunal affirms the decision under review.
.................[sgd]..............................................
Miss E A Shanahan, Member
SOCIAL SECURITY – pensions, allowances and benefits – recipient of disability support pension – maximum portability period 28 days – overseas stay exceeding portability period by 19 days – pension cancelled – payment of disability support pension reinstituted from 15 August 2015 – hospitalisation in Hong Kong – hospitalisation after portability period had been exceeded – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security Determination Act 2011 (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Services and Other Legislation Amendment (2014 Budget Measure No 6) Act 2014Cases
Re Kristoffersen and Secretary, Department of Social Services [2015] AATA 806
REASONS FOR DECISION
Miss E A Shanahan, Member
29 June 2016
Mrs Mortimer has been receiving the Disability Support Pension (DSP) since 5 March 1998. In 1985 she had been diagnosed with homocysteinuria by Professor Hatem Salem and as a complication of this condition she suffered a large intracerebral haemorrhage resulting in permanent damage to the right frontal lobe of her brain.
On 22 June 2015 Mrs Mortimer left Australia for a holiday in Hong Kong. When she did not return within the 28 days allowed for portability for the DSP a Centrelink delegate cancelled her disability support as of 20 July 2015.
Mrs Mortimer returned to Australia on 16 August 2015. She had intended to return on 8 August 2015 but she had become acutely psychotic and was certified and hospitalised for psychiatric treatment.
On 25 August 2015 Mrs Mortimer sought internal review of the decision to cancel her DSP. On 13 October 2015 an authorised review officer (ARO) affirmed the decision of the Centrelink delegate.
Mrs Mortimer then lodged an application for review of the decision by the Administrative Appeals Tribunal, Social Services and Child Support Division. The matter was heard on 7 January 2016 and the decision was affirmed.
On 27 January 2016 Mrs Mortimer lodged an application for a second tier review with the Administrative Appeals Tribunal, General and Other Division.
At the hearing Mrs Mortimer was self-represented and Mr Mark Hester appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal was provided with the documents lodged by the Secretary pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
Mrs Mortimer has provided evidence in the form of her internet banking account, which showed that she paid for her flight to Hong Kong on 23 May 2014. Mrs Mortimer gave oral evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
Mrs Mortimer has been severely ill since 1985 when her homocysteinuria was diagnosed and she subsequently sustained a major cerebral haemorrhage with infarction of the right frontal lobe leading to atrophy and gliosis (fibrosis). In addition she suffers from spinal vertebral disease secondary to osteoporosis and has sustained multiple rib fractures. She qualified for the DSP on 5 March 1998 and on turning 64 she was given the option of transferring to the aged pension. Mrs Mortimer declined this offer, as she thought it was important that the government acknowledged that she was disabled.
On 8 May 2015 Mrs Mortimer contacted Centrelink regarding her plans to travel to Hong Kong from Australia leaving on 22 June 2015. This was to be her first overseas trip. She informed the Centrelink officer that she would return to Australia on 8 August 2015 and requested that all correspondence be directed to her home address in Boronia. Her address in Hong Kong and any contact telephone numbers were unknown.
Mrs Mortimer denies that the Centrelink officer informed her of the 28 day limit of the portability of the DSP. Contrarily, the Centrelink officer’s report of 8 May 2015 noted:
Pension supplement can be paid outside Australia until 20 July 2015. Stop pension supplement on that date.
Mrs Mortimer paid the Helloworld Mountain Gate travel agency the sum of $499.00 being her airfare to Hong Kong by internet banking on 23 May 2014. It was noted that prior to 14 May 2014 the portability period for the DSP was six weeks. In all Mrs Mortimer’s DSP was not paid for a period of four weeks whilst she was overseas.
Mrs Mortimer indicated that had she known her DSP would be cancelled and that only persons with a severe disability could qualify for a longer than 28 day portability period, she would have requested an assessment of her level of incapacity. She complained that she had never undergone such an assessment. She has said that had she been fully informed she would have changed from the DSP to the Aged Pension prior to travelling overseas as the portability period provided was greater for Aged Pension recipients. Mrs Mortimer in her written submissions stated that she believed she was severely impaired and that in accordance with s 1218AAA of the Social Security Act (1991) her portability of the DSP was for an unlimited period.
Mrs Mortimer has informed the Tribunal that she suffers from schizophrenia in addition to her homocysteinuria. No medical evidence has been provided to support these diagnoses although the Tribunal does not doubt that they are correct.
It would appear from the data provided that Mrs Mortimer suffered an acute psychoses on 8 August 2015 at the Hong Kong airport where she was about to embark on her return trip to Australia. She was treated medically and certified to enable admission to Qwai Chung Hospital. The date of admission to the hospital was outside the 28 day period. Mrs Mortimer received appropriate treatment, her psychoses settled and she returned to Australia on 15 August 2015.
Mrs Mortimer has submitted an application for compensation under the Scheme for Compensation for Detriment caused by Defective Administration. However, this has not yet been determined.
RELEVANT LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Services and Other Legislation Amendment (2014 Budget Measure No 6) Act 2014 (the Amendment Act).
Section 1217 of the Act defines the meaning of the maximum portability period stating:
1217Meaning of maximum portability period, allowable absence and portability period
(2)The person’s absence is an allowable absence in relation to the payment at a particular time if, at that time:
(a)it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and
(b)except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B applies, the absence does not:
(i) exceed the period specified in column 5 of that item; or
(ii) in the case of item 2—cause the total number of days (whether consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28, ignoring days in accordance with that item.
The table referred to provides that the portability for DSP is a total of 28 days within a period of 12 months.
The Amending Act came into effect on 1 January 2015 reducing the portability period from six weeks to 28 days.
Section 1218AAA of the Act states:
1218AAAUnlimited portability period for disability support pension—severely impaired disability support pensioner
(1)The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a)the person is receiving disability support pension;
(b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2)The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a)the person is unable to return to Australia because of either of the following events:
...
(ii) the hospitalisation of the person; and
(b)the person’s portability period for disability support pension had not ended at the time the event occurred.
Subsection 94(3B) of the Act defines a severe impairment as:
94 Qualification for disability support pension
Severe impairment
...
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
The Social Security Determination Act 2011 (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 came into effect on 1 January 2012. These tables are based on functional performance as opposed to the severity of the disability, thus assessment for the DSP since that date has been based on different criteria.
The Act does provide for the Secretary to extend the period of portability of the DSP; however, s 1218AB and s 1218C of the Act relating to the extensions do not apply to Mrs Mortimer.
SUBMISSIONS
Mrs Mortimer’s written submissions have been referred to. At the hearing she contended that it was Centrelink’s responsibility to inform all pension recipients of changes to the relevant law. The Tribunal pointed out that this could amount to telephoning three to three and half million individuals three times a year, a task patently beyond the performance capacity of Centrelink. Mrs Mortimer did maintain her argument that she should be assessed to determine whether she had a severe disability. She also said she was currently giving consideration to switching to the aged pension.
Mr Hester outlined the applicable law, and the duty of recipients of pensions, benefits and allowances to inform themselves of changes in the law. He submitted that the correct decision had been made as Mrs Mortimer had exceeded the period of portability for the DSP and had done so before she became ill and was admitted to hospital. The decision in Kristoffersen and Secretary, Department of Social Services [2015] AATA 806 was referred to. Mr Kristoffersen had similarly misunderstood the then current provisions of the Act and had argued that he had a severe disability that would qualify him for exceptions to the basic portability provisions.
TRIBUNAL’S DETERMINATION
The facts in this matter speak for themselves in that Mrs Mortimer travelled overseas to Hong Kong for a holiday and remained overseas beyond the 28 days portability provided by the Act. While she was later hospitalised, this occurred some 19 days after she had exceeded the maximum portability period. While she denies she was informed of the change in the Act in regards to the maximum period, it is well documented in her Centrelink file.
As the Tribunal pointed out to her it is well beyond the capacity of Centrelink to inform over three million aged pension and DSP recipients in the country of every change in the social security law, which of late has been frequent.
Mrs Mortimer has objected to the fact that she has not at any time undergone a job capacity assessment, she having qualified for the DSP prior to the introduction of such assessments. The Tribunal has informed her that she could proceed with this if she wished to remain on the DSP as opposed to the aged pension. Given the introduction of new impairment tables in 2012, a job capacity assessment may now, based on a functional assessment, determine that Mrs Mortimer does not meet the eligibility requirements for the DSP.
The Tribunal affirms the decision under review. I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member ................[sgd]........................................
Dated 29 June 2016
Date(s) of hearing 27 April 2016 Applicant In person Advocate for the Respondent Mark Hester
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