Nagy and Secretary, Department of Social Services (Social services second review)
[2022] AATA 1501
•15 March 2022
Nagy and Secretary, Department of Social Services (Social services second review) [2022] AATA 1501 (15 March 2022)
Division:GENERAL DIVISION
File Number: 2019/2574
Re:Michael Nagy
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak QC, Member
Date of Decision: 15 March 2022
Date of written reasons: 12 April 2022
Place:Melbourne
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Mr A. Maryniak QC, Member
Catchwords
SOCIAL SECURITY — Suspension of Disability Support Pension — Centrelink — limited portability period – whether Applicant entitled to extended portability provisions under s 1217 of the Social Security Act 1991 — meaning of the terms ‘medical treatment’ and ‘eligible medical treatment’ — whether Applicant’s temporary absence from Australia was for the purpose of seeking medical treatment not available in Australia — decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Cases
Osmani v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605
Secretary, Department of Social Security v Barbara Wills [1998] AATA 400
Secretary, Department of Social Security v Howse [1993] AATA 231
Younan v Secretary, Department of Employment and Workplace Relations [2006] AATA 738Welcker v Secretary, Department of Social Services [2019] AATA 1566
REASONS FOR DECISION
Mr A. Maryniak QC, Member
12 April 2022
At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.
The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
An extract of the edited transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.
4. I certify that the following 21 (twenty-one) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member
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Associate
Dated: 12 April 2022
Date of hearing: 15 March 2022 Advocate for the Applicant: Self-represented
Advocate for the Respondent: Ms Peta Heffernan Solicitors for the Respondent: Australian Government Solicitor ANNEXURE A
MEMBER: This is a review of a decision from a division of this Tribunal made on 12 April 2019. The issue before the Tribunal is a discrete one and that issue is whether the treatments obtained by the Applicant in Budapest are ‘eligible medical treatments’ under the relevant provision, being section 1212 of the Social Security Act 1991 (Cth) (the Act).
Section 1212 defines ‘eligible medical treatment’ as ‘medical treatment of a kind that is not available to the person in Australia’.
The impact of that section has meant that the Applicant's Disability Support Pension (DSP) has been suspended over five periods that are relevant to this application. Those periods of suspension come about by reason of section 1215, together with section 1217 of the Act, which provide that the maximum portability period for the DSP is a total of 28 days of temporary absence from Australia in the last 12 months, or relevant 12-month period.
Pursuant to section 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 4 of the items in the table at the end of the section and is applicable to the payment and the person. With respect to this application, the applicable absence contained in column 4 of the Table is one for the purpose of seeking ‘eligible medical treatment’.
The Applicant's position is that he did obtain eligible medical treatment and that in those circumstances, he has satisfied the requirement to extend the portability period beyond the 28 days.
In support of his application, the Applicant referred to the Social Security Agreement between Australia and the Republic of Hungary, and at the outset, the Tribunal accepts the Respondent's submission that that particular agreement, whilst it may be relevant to Age Pensions, is not relevant to this application concerning the Applicant’s eligibility for DSP payments.
The Tribunal has considered the documentary evidence, together with the submissions made by the Applicant and the Respondent, and the evidence given by the Applicant orally and during cross‑examination. As a result of that evidence, the Tribunal considers that the five relevant periods essentially fall into two categories.
The first category consists of the second, third and fourth periods relevant to the application, being 21 January 2017 to 31 March 2017, 11 October 2017 to 1 November 2017, and 15 March 2018 to 3 April 2018. These periods are similar in the sense that on an analysis of the body of evidence before the Tribunal there is no persuasive evidence to support the proposition that any medical treatment was obtained by the Applicant during each of those periods. The Applicant essentially agreed during cross‑examination that no such evidence is before the Tribunal, and on analysis of the documentary evidence, there is nothing of substance to support the Applicant’s contention that any medical treatments were obtained in respect to those three periods.
The second category includes the first and fifth periods, being 7 May 2016 to 20 May 2016 and 18 June 2018 to 12 September 2018.
In that former period, the Applicant left Australia on 15 April 2016 and returned on 21 May 2016. A relevant medical report regarding the treatment obtained during this period is at page 145 of the Supplementary T Documents before the Tribunal. It is necessary for the Tribunal to consider the words in the relevant section, namely, ‘medical treatment’ and ‘eligible medical treatment,’.[1] In this regard, the Tribunal is guided by the decision of Secretary, Department of Social Security v Barbara Wills [1998] AATA 400 in its analysis of the expression ‘medical treatment’ and considers the interpretation therein to be the correct one, namely that ‘medical treatment’ requires ‘a diagnosis and treatment plan formulated by a qualified medical practitioner and conducted under his or her oversight, including some kind of review’.[2]
[1] Social Security Act 1991 (Cth) s 1217.
[2] Secretary, Department of Social Security v Barbara Wills [1998] AATA 400 at [21].
Equally, the Tribunal notes that in Secretary, Department of Social Security v Howse [1993] AATA 231, it was decided that any question of whether medical treatment is of a kind not available in Australia must be decided on an objective basis, and not on the perception of the patient.[3]
[3] Secretary, Department of Social Security v Howse [1993] AATA 231 at [9].
The Tribunal is also conscious of the comments made in Younan v Secretary, Department of Employment and Workplace Relations [2006] AATA 738 at paragraph 15, in Welcker v Secretary, Department of Social Services [2019] AATA 1566 at paragraph 34, and Osmani v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605 at paragraph 35.
On an analysis of those decisions, and on reflecting on the relevant legislative provisions, the Tribunal is of the view that the evidence before it is deficient to establish that the Applicant obtained eligible medical treatment during the first period of 7 May 2016 to 20 May 2016 in the requisite statutory sense.
Whilst there is a medical report provided, which recommended that the complex therapy be undertaken by the Applicant at least 10 times,[4] the Tribunal does not consider that this document stands as anything more than a descriptor of medical treatment the Applicant had obtained. As an aside, the Tribunal reminds the parties that whether the treatment obtained by the Applicant is of benefit or not is not in issue in this application.
[4] Supplementary T-Documents/ST1 at page 145.
By the Applicant's own admission in oral evidence, there is no evidence before the Tribunal whatsoever, from any Australian practitioner, or any treating doctor, to support the proposition that the medical treatment obtained overseas was required. In fact, the Applicant went further to suggest that the Australian doctors could not add anything in this regard. What is apparent on the evidence is that the Applicant, of his own volition, has obtained this particular treatment, so in that sense, it has been obtained on a subjective basis, not on any objective medical basis.
As discussed during the hearing, the highest the evidence gets in support of the Applicant's position is that various medical practitioners treating the Applicant in Australia have observed he is in fact obtaining this treatment. That evidence goes no higher, and amounts merely to an observation. In no other way does such evidence support the proposition that such medical treatment was recommended by a treating Australian medical practitioner.
The fifth and final period is 18 June 2018 to 12 September 2018 and the relevant document is a discharge summary and report prepared by two doctors at the Budapest Health Spa.[5] The Tribunal notes that this report is signed by two different doctors to the treating doctor listed in the medical report provided in relation to the first period in 2016, and again, the Tribunal is not persuaded on the face of this document that it is a descriptor of medical treatment within the relevant statutory sense.
[5] Ibid at page 137.
As such, the findings in respect of the Applicant's evidence as to the failure to obtain any recommendation from a treating Australian doctor to pursue such treatment overseas equally applies to the treatment obtained by the Applicant during this fifth period.
In those circumstances, the evidence does not support a finding that the two visits to the Budapest Health Spa during the first period or the fifth period were medical treatments as required under section 1217(2) of the Act.
Further, in light of those findings, even though it is not necessary for the Tribunal to determine, the Tribunal is of the view that there is insufficient evidence before it to come to a conclusion that either treatment during the first period or the fifth period could properly be described as ‘an eligible medical treatment’ as there is insufficient evidence to come to a finding that, on balance, such medical treatment is of a kind that is not available to the Applicant in Australia.
In these circumstances and in light of the findings made above, the correct or preferable decision is that the decision under review should be affirmed.
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