Mouzaoui and Secretary, Department of Family and Community Servic Es
[2003] AATA 710
•29 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 710
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1756
GENERAL ADMINISTRATIVE DIVISION ) Re MOURAD MOUZAOUI Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date29 July 2003
PlaceSydney
Decision The decision under review is affirmed.
...............................................
Dr J D Campbell
Member
CATCHWORDS
SOCIAL SECURITY - Newstart allowance - overseas absence - payment - allowable absence - eligible medical treatment
LEGISLATION
Social Security Act 1991, sections 1212, 1213, 1217(2)
AUTHORITIES
SDSS and Wills (1998) AATA 12956
REASONS FOR DECISION
29 July 2003 Dr J D Campbell, Member 1. In this matter Mr Mourad Mouzaoui ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 17 October 2002, which affirmed the decision of an Authorised Review Officer ("ARO") dated 30 July 2002. This latter decision affirmed a decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 19 July 2002 that the Applicant was not entitled to payment of his Newstart allowance during his absence from Australia during the period 24 June 2002 to 11 January 2003.
2. A hearing was held by the Tribunal on 30 May 2003 at which the self-represented Applicant presented oral evidence. Mr Kenny, an advocate from the Centrelink Service Recovery Team represented the Respondent. Dr Hopper presented telephone evidence to the Tribunal.
3. The following material was placed into evidence before the Tribunal:
Exhibit No
Description
Date
T1-25 pp1-58
Documents pursuant to section 37 of the
Administrative Appeals Tribunal Act 1975A1
Medical report Dr J Hopper
12 March 2003
A2
e-mail by Applicant to Dr Hopper
15 August 2002
A3
Letter Applicant to Centrelink
26 June 2002
A4
Travel Itinerary of Applicant
12 June 2002
A5
Medical report Dr Read concerning M Gittany
18 July 2002
A6
e-mail Applicant to Centrelink
6 August 2002
A7
Medical certificate re Applicant
29 May 2002
A8
Medical certificate re Applicant
Undated
A9
Medical certificate re Applicant
14 March 2003
A10
Medical report Dr Hopper
9 August 2002
A11
Medical report Dr Hopper
29 May 2002
A12
Medical report Dr Hopper
20 January 2003
A13
Document concerning appeal to SSAT
19 August 2002
A14
ANZ Bank certificate
15 August 2002
A15
Comments in response to decision of ARO
Undated
A16
Eight photographs of the Applicant showing swelling
of the lips and faceA17
FAX STA - 2 pages
27 August 2002
A18
Copy of Medical Appointments of the Applicant
Undated
R1
Respondent's statement of facts and contentions
23 May 2003
issues
4. The relevant issue in this matter is whether the Applicant's temporary absence from Australia was for the purpose of seeking eligible medical treatment, and if so is the Applicant entitled to payment of Newstart Allowance during this period of allowable absence.
legislation:
5. The relevant legislation is the Social Security Act 1991 ("the Act") with the following nominated sections providing the statuary framework, within which this matter is to be consider:
" - SECT 1213
Persons to whom Division appliesThis Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:
(a) immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of section 1217; or
(b) during the period of absence, the person's claim for such a payment is
granted under the Social Security (Administration) Act 1999.
…
1217(2) The person's absence is an allowable absence in relation to the payment at a particular time if, at that time, it is an absence specified in column 5 of the table that is applicable to:
(a) the payment (as specified in column 2 of the table); and
(b) the class of persons to which the person belongs (as specified in column 3 of the table).
Portability of social security payments
Column 1
Column 2
Column 3
Column 4
Column 5
Item
Payment
Person
Absence
Maximum
15
Newstart allowance
All persons
A temporary absence for any of the following purposes:
(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose.
26 weeks
Section 1212 defines "eligible medical treatment" as follows:
"eligible medical treatment, in relation to a person, means medical treatment of a kind that is not available to the person in Australia."
background
6. In an undated letter the Applicant applied to Centrelink to have payment continued of his Newstart Allowance while travelling overseas for the purpose of medical treatment (T6). The Respondent notes that such a letter was received on 27 June 2002 (T7) together with a medical certificate from Dr Hopper indicating that the Applicant was unfit for work for the period of 29 May 2002 to 29 July 2002 (Exhibit A7). A report from Dr Hopper stating a diagnosis and symptomatology in relation to the Applicant's psychiatric condition (Exhibit A11) was also enclosed, as well as a travel itinerary indicating that the Applicant had departed Australia for Bangkok on 24 June 2002 and was returning to Australia on 12 July 2002 (Exhibit A4).
7. On 27 June 2002 the Respondent advised the Applicant that he would not receive any Centrelink payments while he remained outside Australia (T9). A further letter from Dr Hopper dated 17 July 2002 (T10) was forwarded to the Respondent. In this letter, Dr Hopper stated that she supported the Applicant's decision to travel overseas to spend some time with his family in Algiers, as his mental state improved during his last overseas trip, but had gradually worsened upon return to Sydney and that he was unable to work with his current level of psychiatric impairment. On 19 July 2002 the decision to deny payments was upheld and the Applicant so advised (T12).
8. A request for a review of the decision was received by the Respondent on 19 July 2002 (T14). The Authorised Review Officer ("ARO") in affirming the original decision on 30 July 2002 (T17), considered that there was "no evidence from your psychiatrist that before you left Australia that there was a treatment plan, treatment overseas would be over sighted by a medical practitioner or that some kind of review would occur at any time".
9. The Applicant appealed the decision of the ARO to the SSAT. In a decision dated 17 October 2002, the SSAT affirmed the earlier decision that the Applicant was not entitled to payment of Newstart allowances whilst he was overseas, as "on balance, … the applicant's absence from Australia on this occasion was not for the purpose of seeking eligible medical treatment " (T2, p9).
Applicant's evidence
10. The Applicant told the Tribunal that he was born in Algeria on 19 November 1966, completed the higher school certificate equivalent in Algeria, attended at a university in Algiers for two years studying philosophy, spent three years at the University of Geneva on a student visa, but did not graduate as he spent most of his time working prior to arriving in Australia in 1993. The Applicant stated that he was fluent in French, Arabic, Algerian and English; that his parents are elderly and living in Algeria with his four sisters and elder brother also residing in Algeria, and two brothers residing in America. The Applicant indicated that he might have to return to Algeria because of the recent earthquakes.
11. The Applicant told the Tribunal of his wrongful arrest by police in Sydney on 26 May 2000 and his detention for some three to four hours. As a consequence the Applicant states that he is suffering from post-traumatic stress disorder and severe depression and that he has been receiving psychiatric treatment since the incident, which involves counselling and many medications. His symptomatology since the incident had involved feeling sad, crying, negative thoughts, feelings of guilt, anger, lack of motivation, suicidal thoughts, difficulty in sleeping, altered sleep patterns, paranoia, argumentative behaviour and fighting, an inability to control emotions or to concentrate, eating too much on occasions, stress, chest tightness, avoiding social activity, attempting suicide (knife, car, drugs), heartburn, initially constipation and an inability to cope.
12. The Applicant told the Tribunal that he wants to look after his health and feels that he is living his life in a tunnel. He does not want people to hate him and he is undertaking a course at TAFE in travel.
13. Before leaving for Thailand in June 2002 the Applicant described his clinical symptomatology in the following terms:
· an inability to sleep at nights, sometimes for 24 hours;
· feeling paranoid;
· had concerns when he saw a police car;
· extremely aggressive and angry;
· took a knife and tried to cut his face;
· feelings of hopelessness and thinking he was going crazy; and
· feeling scared.
14. In Algeria, the Applicant stated that he stayed with his family, did not go out much and kept in contact with his doctor by e-mail, his doctor having given him five to six months supply of medication. In Algeria he found that he had less thoughts of killing himself, his sleeping and eating improved and he started to smile and listen to jokes.
15. The Applicant told the Tribunal that he commenced on Newstart Allowance in February/March 2000, having worked as a printer between 1993 and 1998, undertaken a course in graphic design in 1998, and spent five to six weeks overseas in 1999 prior to commencing a hospitality course at the University of Western Sydney in April 1999.
16. The Applicant informed the Tribunal of the following matters:
· that being in Australia reminds him of the incident;
· that Dr Hopper recommended on both occasions (9 August 2002 and 12 March 2003) that it would be beneficial to go overseas and to visit his family;
· that he was required to take medication while he was overseas;
· that his earlier period in Algeria in 2001 with his family had been reviewed as constituting medical treatment by the SSAT, and that he had received Newstart allowance during this period overseas;
· that he had left the country for medical reasons and that his overseas period was part of the rehabilitation program; and
· that it was cheaper to buy tickets to Algeria in Thailand.
17. In response to questions in cross-examination, the Applicant stated that:
· he was given six months supply of medication by Dr Hopper;
· this treatment by Dr Hopper had not been intermittent by Dr Hopper as exampled by her schedule of consultation (Exhibit A18);
· he always intended to go to Algeria, although only ticketed as far as Bangkok when he left Australia;
· Dr Hopper supported his decision to take time away from the stressful environment Sydney; further he feels better when he is not in Australia; and,
· that he is not used to being without "family", and when he left he was in possession of Dr Hopper's e-mail address and telephone number if problems arose.
dr hopper - consultant psychiatrist
18. Dr Hopper in her report of 27 September 2001 (T19) detailed that she had been the Applicant's treating psychiatrist since May 2001 and that he had recently suffered an exacerbation of depression. In a further report dated 3 October 2001 (T20) Dr Hopper stated that following his wrongful arrest by the police, the Applicant has developed post-traumatic stress disorder and major depression and that he is unable to work. In a further report to Centrelink on 15 November 2001 (T23) Dr Hopper stated:
"To add to my previous letters, I would like to emphasise the need for Mourad to visit his family in Algiers this year. I see this as essential psychiatric (medical) treatment. Mourad's level of depression has been very severe. This has resulted from extreme stress by being wrongfully arrested by the police and kept in police custody in May of 2000. Since then Mourad has developed Post-Traumatic Stress Disorder and severe Major Depression.
Mourad needs to be removed from his source of stress for a period of time which entails a period of time out of Australia. If he remains in Sydney, I think his … hostility and paranoia will escalate and his psychiatric condition will worsen. I see the trip as essential to his mental health, which is currently extremely fragile.
…
In summary I see Mourad's trip out of Australia as essential medical treatment for a psychiatric condition that is potentially life threatening."
19. In a further letter to Centrelink dated 31 November 2001 (T24) Dr Hopper again commented:
"I consider going overseas as a very necessary part of Mourad's treatment programme."
20. In a letter to Centrelink dated 17 July 2002 (T10), Dr Hopper stated:
"Mourad's mental state deteriorated further this year and I supported his decision to take time away from the stressful environment in Sydney. He travelled overseas at the end of June 2002 and plans on spending some time with his family in Algiers. His mental state improved during his last overseas trip but gradually worsened when he returned to Sydney. Mourad requires his ongoing payments from Centrelink and is unable to work with his current level of psychiatric impairment."
21. In a report dated 9 August 2002 (Exhibit A10), Dr Hopper detailed the Applicant's symptomatology over time, confirmed the diagnosis as post-traumatic stress disorder and detailed his treatment program, which included medication and psychotherapy, both with limited effect. Dr Hopper further commented:
"…
Mourad's mental state deteriorated further during 2002 after his return to Sydney. He felt that the only way to relieve symptoms was to travel overseas again. Mourad planned to visit Thailand with a friend and then travel by himself to Algeria to see his family. Given the severity of his symptoms and the knowledge that his mental state improved considerably when he removed himself from the source of stress, I thought this plan of action was reasonable. Mourad was keen to continue his trial of Aropax while overseas … If he had concerns regarding medication or ongoing psychiatric treatment, Mourad has my contact details.
…"
22. In a report to Centrelink on 29 May 2002 (Exhibit A11) Dr Hopper detailed Mourad's clinical symptoms as"
"The symptoms that impair his functioning include poor concentration, impaired sleep, decreased motivation and energy. He also has an instability in mood with periods of depression and anger resulting in erratic performance and attendance."
23. In a further report dated 12 March 2003 (Exhibit A1) Dr Hopper again indicated that she supported the Applicant's decision to travel overseas in June 2002, as his mental state had deteriorated in Sydney.
24. In telephone evidence to the Tribunal, Dr Hopper indicated that she had frequently undertaken weekly/fortnightly consultations. In relation to the trip overseas in June 2002, Dr Hopper while strongly supporting such a trip stated that it was not a prescription. She also observed that it was beneficial.
25. In response to questions in cross-examination Dr Hopper stated that during the trip:
· no cognitive, behavioural or psychotherapy was undertaken;
· Aropax medication trial was continued;
· avoiding stresses did cause symptom reduction;
· his support network was helpful; and
· contact was made by Mourad on one or possibly two occasions.
other evidence
26. In a tabled record of consultations provided to the Applicant by Dr Hopper (Exhibit A18), the record indicates that between 3 May 2001 and 21 November 2001 the Applicant was seen on 22 occasions with an increasing frequency occurring in the last two months of the period (12 occasions). The Applicant was seen on seven occasions by Dr Hopper between 13 March 2002 and 19 June 2002.
27. In evidence before an earlier SSAT hearing, the Applicant indicated that he was absent from Australia between 24 November 2001 and 20 February 2002 (T25).
submissions
28. The Applicant submitted that as a consequence of his psychiatric illness, his Newstart allowance should be paid during his period of absence from Australia between June 2002 and January 2003. The Applicant stated that the travel was undertaken with the knowledge and concurrence of his treating specialist, Dr Hopper; that the absence from Australia was beneficial to his well-being and that throughout his time away he had access to Dr Hopper by way of e-mail or telephone if the need should have arisen.
29. The Applicant, noted that his previous period of absence from Australia between November 2001 and February 2002 (a three months period) had been approved as an allowable absence on the grounds that his purpose for the temporary absence was to seek eligible medical treatment pursuant to section 1217(2)(a) of the Act, and so submitted that his temporary absence between June 2002 and January 2003 (a six month period) was for a like purpose. As such the Applicant contended that he was entitled to the payment of Newstart allowance for his 26-week period of temporary absence from Australia.
30. The Respondent contended that the Applicant's absence from Australia was not to seek eligible medical treatment for indeed there is no evidence to suggest that the Applicant sought any medical treatment while overseas. Further, the Respondent, while noting that the Applicant was prescribed and carried six months supply of his "trial medication", observes that the Applicant only had cause to e-mail his psychiatrist, Dr Hopper, on one occasion (Exhibit A2) and may have had occasion to contact her on a second occasion. In this regard the Respondent contends that there is singularly little evidence of communication between Dr Hopper and the Applicant over the period of the 25 weeks in question, and that this coupled with a lack of monitoring and assessment by Dr Hopper during this period constitutes a period in which there was an absence of medical treatment. It is the Respondent's contention that the Applicant was pursuing a course of his own making, when he decided to travel overseas, and that this in itself was at best a course of self treatment.
31. It is for these reasons that the Respondent contends that the decision should be affirmed, for in their view the Applicant's temporary absence from Australia during the period in question had nothing to do with seeking eligible medical treatment.
considerations And findings
32. In this matter the Tribunal has been particular to detail the circumstances in which this matter has evolved. The Tribunal notes that there is considerable agreement between the parties as to the basic facts. Nevertheless to avoid any misconstruction the Tribunal makes the following finding of facts:
(a) The Applicant has been under treatment by Dr Hopper since May 2001, following referral by Dr Lovell, the Applicant's general practitioner, for psychiatric assessment and care following an incident involving the Applicant with the police in May 2000.
(b) Dr Hopper records the Applicant as suffering from post-traumatic stress disorder and major depression as a consequence of the incident in May 2000.
(c) Dr Hopper records the Applicant's clinical symptomatology as significant with the need for frequent consultation between May 2001 and November 2001. Dr Hopper also considered it essential psychiatric treatment that the Applicant visits his family in Algiers in November 2001.
(d) The Applicant did visit his family in Algiers from November 2001 to February 2002, and this was considered an allowable absence by the SSAT in October 2002, as the Applicant's purpose for the temporary absence from Australia was to seek eligible medical treatment.
(e) In June 2002 the Applicant, while continuing to suffer clinical symptoms of his psychiatric disorder elected again to travel overseas. In the first instance he travelled to Bangkok in the company of a friend, Ms Gittany, and after a period of a few weeks the Applicant attempted to make travel arrangements for himself to fly to Algiers. Ms Gittany returned to Australia and assisted with loan funds toward the Applicant's fare to Algiers. The Applicant travelled to Algiers on 31 July 2002, to be with his family, and returned to Australia on 11 January 2003.
(f) The Applicant did discuss his intention to travel to both Bangkok and Algiers with Dr Hopper prior to his departure on 24 June 2002.
(g) Dr Hopper supported the Applicant's intention to travel overseas and considered the Applicant's plan of action reasonable. Dr Hopper also concluded that such a trip was "not a prescription".
(h) Dr Hopper provided the Applicant with a six-month supply of medication prior to his departure and also with her e-mail and telephone number if the Applicant was to experience problems.
(i) There is evidence that the Applicant contacted Dr Hopper on one occasion in August 2002 in relation to his Centrelink issues as well as providing Dr Hopper with an update as to his welfare. The Tribunal is unable to make any finding of whether another communication occurred, other than to state that it may have occurred.
(j) The Applicant returned to Sydney on 11 January 2003 with both he and Dr Hopper believing the sojourn outside Australia had been beneficial to his well being.
33. The central issue in this matter is whether the Applicant's temporary absence from Australia was for the purpose of seeking eligible medical treatment, that being medical treatment of a kind that is not available to a person in Australia (definitive of eligible medical treatment pursuant to s 1212 of the Act).
34. The issue of what constitutes medical treatment has been considered in SDSS and Wills (1998) AATA 12956 where the presiding member stated:
"…"medical treatment" of the kind of condition suffered by the Respondent requires a diagnosis and treatment plan formulated by a qualified medical practitioner and conducted under his or her oversight, including some kind of review.
…
The Tribunal is satisfied that the legislative intent does not extend to self-treatment but does require some degree of oversight by a qualified medical practitioner."
35. The Tribunal, in noting that prior to the Applicant's temporary absence from Australia commencing 24 November 2001 Dr Hopper, the treating psychiatrist, had made a diagnosis of post-traumatic stress disorder and major depression and detailed a treatment plan, observes that such a treatment plan will be varied over time as the medical needs of the Applicant change. In this regard the Tribunal observes the frequency and nature of treatment (psychotherapy and medication) in the period between May 2001 and November 2001 (24 visits) and the recommendation by the treating psychiatrist that a trip overseas by the Applicant to be with his family was essential psychiatric (medical) treatment for the Applicant.
36. In considering the second and relevant temporary absence from Australia by the Applicant the Tribunal notes the frequency of consultation between the Applicant and Dr Hopper between February 2002 and 24 June 2002 (seven times), the change in medication to a trial of Aropax (June 2002), the provision of six months supply of the trial medication in June 2002 by Dr Hopper, and Dr Hopper's support for the Applicant's travel plans to Algiers via Bangkok. The Tribunal further notes that Dr Hopper provided the Applicant with an e-mail address and a telephone number for the Applicant to use if required.
37. The Tribunal further notes that the Applicant spent at least two months in Bangkok before proceeding to Algiers, with the only documented evidence of communication between the Applicant and Dr Hopper occurring in August 2002. The Tribunal also notes that the Applicant benefited health wise from his overseas trip.
38. The Tribunal in analysing all the information before it has, on the balance of probabilities, much difficulty in accepting that the temporary absence on this occasion (24 June 2002 - 11 January 2003) was for the purpose to seek eligible medical treatment, that being medical treatment of a kind that is not available to the Applicant in Australia for the following reasons:
(a) The medical diagnosis and medical treatment plan as at 24 June 2002 involved the commencement of a trial of new medication in June 2002, a supply of six months of the trial medication and no arrangements established by the treating psychiatrist for on-going clinical review during the period of absence.
(b) That there was no clinical review of the Applicant by any doctor in relation to the Applicant's psychiatric illness during his six months periodic temporary absence.
(c) That while Dr Hopper supported the Applicant in his intention to travel overseas, and that this may and was beneficial to his well being, Dr Hopper was specific in stating that such travel was not prescribed. In this regard the Tribunal concludes that the travel was not an essential part of the treatment regime for the Applicant for on the previous occasion Dr Hopper had been specific in detailing that it was essential for the Applicant to spend time with his family in Algiers.
(d) That the trip was always intended to be in two phases, with the first phase extending to a period of nine weeks in Bangkok for a variety of reasons, which included respite with his travelling companion and an ability to live cheaply while arranging funds and bookings for his trip to Algiers. The Tribunal finds it difficult to conclude that it was necessary for the Applicant to spend nine weeks in Thailand, if indeed the main purpose of his travel was to be with family in Algiers.
(e) Further, the Tribunal has difficulty in accepting that there was a therapeutic necessity for the Applicant to absent himself from Australia in mid 2002 in order that he remove himself from reminders of the incident with the New South Wales Police that occurred in May 2000. At best Dr Hopper supports his intention to travel, and that time with family is beneficial to the Applicant's well being, but nowhere in her reports relating to his absence does Dr Hopper indicate that he should seek such an activity.
(f) Similarly the Tribunal has difficulty in accepting that on this occasion the Applicant travelled for the purpose of seeking medical treatment. In so stating, the Tribunal, even allowing for the nature of the condition, has difficulty in accepting that the Applicant was other than on a maintenance program of treatment during his absence, in which medication was preordained and left to himself for compliance with no clinical review program apparently desired or demanded.. The Tribunal further observes that the initiation of patient-doctor contact was left with the Applicant, that there is one documented episode of such contact, and that this episode of contact was more to do with Centrelink issues and a release of a report to Ms Gittany. ,All of this indicates to the Tribunal that the Applicant was on a stabilised therapeutic program somewhat loosely arranged by his attending psychiatrist and in no need of seeking eligible medical treatment while overseas.
(g) The activities undertaken by the Applicant were self initiated in relation to the activities of his absence from Australia between 24 June 2002 and 4 January 2003. While Dr Hopper supported such travel activities, they were not a necessary part of Dr Hopper’s ongoing treatment program, as evidenced both by her statements and the ongoing arrangements established. As such it is difficult for the Tribunal to conclude other than that the purpose of the travel arrangements were for personal purposes, as opposed to seeking eligible medical treatment, albeit that being with his family may have been beneficial to the Applicant's well being.
39. In summary the Tribunal concludes that the Applicant's absence from Australia between 24 June 2002 and 11 January 2003 was not for the purpose of seeking eligible medical treatment, for although his travels may have had a beneficial effect on his well being, they were not part of a designated medical treatment program, nor would it appear that the Applicant sought any other medical treatment in relation to his psychiatric condition whilst absent overseas. In essence, the Tribunal expresses significant difficulty in extending a concept which involves seeking eligible medical treatment to encompass a self-initiated absence from Australia, which is supported but not ordained by the treating psychiatrist, a continuance of an established medical treatment program, an absence of ongoing clinical review during the period of absence, despite initiating a trial of medication in the month of departure and an absence of any medical care interaction between the Applicant and a doctor in relation to continuing care of his psychiatric condition during his absence. As such the Tribunal concludes that the period of absence between 24 June 2002 and 11 January 2003 was not a period of allowable absence, and hence the Applicant was not entitled to payment of Newstart allowance during this period.
40. The Tribunal determines that the decision under review be affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: C. Gregson
AssociateDate/s of Hearing 30 May 2003
Date of Decision July 2003
Solicitor for the Applicant Self-Represented
Advocate for the Respondent Mr J Kenny
2
0
0