O’Chee and Secretary, Department of Employment (Social services second review)
[2016] AATA 58
•5 February 2016
O’Chee and Secretary, Department of Employment (Social services second review) [2016] AATA 58 (5 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2110
Re
Kevin O'Chee
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 5 February 2016 Place Sydney The decision under review is affirmed.
........................[sgd]................................................
N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – newstart allowance – whether applicant entitled to newstart allowance whilst absent from Australia – definition of ‘family acute crisis’ – definition of ‘family member’ – grandmother of the applicant – visiting grandmother overseas – decision affirmed.
LEGISLATION
Social Security Act 1991 ss 23, 1212A, 1217
CASES
Al Umari and Secretary, Department of Family and Community Services [2003] AATA 431
Hague and Secretary, Department of Family and Community Services [2005] AATA 153
Keroloss and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 659
Re Ghafoor and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 159
Re Ramsay and Secretary, Department of Education and Workplace Relations [2010] AATA 278
Van and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 91SECONDARY MATERIALS
Centrelink Website
REASONS FOR DECISION
Ms N Isenberg, Senior Member
5 February 2016
BACKGROUND
The Applicant, Kevin O’Chee (“Kevin”) was born in June 1987 in China. In 1990, his father, Henry O’Chee (“Mr O’Chee”) emigrated to Australia, leaving his wife and Kevin in Shanghai. Until they were able to join him in 1995, Mrs O’Chee and Kevin lived with Mrs O’Chee’s mother, Kevin’s grandmother, in China.
Kevin has been paid Newstart allowance since he left university several years ago.
In August 2014, Kevin’s grandmother, who was then aged 93, was admitted to hospital due to acute myocardial infarction and chronic gastritis. After about three weeks she was discharged. At that time her condition was considered to be stable and she was to be treated with medication at home.
On 9 October 2014, Kevin’s grandmother was again admitted to the same hospital with cholecystitis, atherosclerosis of coronary artery and heart functioning grade 3. Five days later she was discharged from hospital as her condition was considered to have stabilised. She was to be treated with medication at home.
On 2 November 2014, Kevin and his father departed Australia to visit his grandmother. From that date Kevin’s Newstart allowance was suspended on the basis that his circumstances did not satisfy the portability criteria.
Kevin sought review of the suspension decision but it was affirmed both on internal review and by the SSAT. Kevin now seeks review by this Tribunal.
LEGISLATION
The relevant law is contained in the Social Security Act 1991 (“the Act") and the Social Security (Administration) Act 1999 ("the Administration Act").
ISSUES
The main issue before the Tribunal is whether Kevin can be paid Newstart allowance whilst he was overseas from 2 November 2014 to 29 November 2014 ("the relevant period"). This requires consideration of s 1217 of the Act, and in particular whether Kevin attended to an "acute family crisis" involving his grandmother and whether she is a "family member" for the purposes of the Act.
Conduct of the hearing
Kevin did not attend the hearing. The Respondent objected to the matter proceeding without having the opportunity to cross-examine him. Mr O’Chee informed the Tribunal that he did not want Kevin to participate in the hearing because he, Kevin, suffers from anxiety, and the stress of the hearing may exacerbate his condition. Mr O’Chee is Kevin’s “nominee” with Centrelink, which means he can deal with Centrelink on his son’s behalf. I confirmed with Mr O’Chee that it was both his and Kevin’s preference for the matter to proceed on the listed day, notwithstanding that there may be matters about which only Kevin could give evidence to assist the Tribunal. I decided that the matter could proceed. Mr O’Chee gave evidence as well as making submissions on Kevin’s behalf, and the Respondent was given leave to conduct wide-ranging cross-examination.
CONSIDERATION
Newstart allowance is only portable for a temporary absence from Australia (up to of six weeks) for limited purposes, one of which is to attend to an acute family crisis: s 1217 of the Act.
Was Kevin absent because of an acute family crisis?
Mr O'Chee contended that Kevin was absent because of an acute family crisis, namely to visit his "critically ill" grandmother in China.
Section 1212A of the Act defines an “acute family crisis”, relevantly, as follows:
For the purposes of this Part, a person's absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of visiting a family member who is critically ill; or
(b) for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c) …
(d) …
Medical reports were provided that show Kevin’s grandmother as having been hospitalised between 19 August 2014 and 6 September 2014 and again between 9 October 2014 and 14 October 2014.
Mr O’Chee said that his wife’s relatives told them that when Kevin’s grandmother was in hospital they had been told to prepare themselves for the worst and that her “days were numbered”. That prognosis was not documented because to do so, he said, would be like “a curse” and would precipitate her demise. In fact, despite her advanced age, Kevin’s grandmother remains alive, even now.
Mr O’Chee said that his wife’s relatives told them that Kevin’s grandmother wanted to see Kevin before she died. In Chinese culture, he said, a grandson is treasured, even above a son. Kevin was not keen to go. Mr O’Chee said that he was concerned that Kevin’s conduct might distress his grandmother, so he, rather than Kevin’s mother, had accompanied him, as he is better at controlling Kevin. In all the years Kevin had been in Australia, he had never accompanied his parents on their numerous trips to China.
I accept that Kevin went to China to see his 93 year old grandmother, who, in the weeks before his visit, had been hospitalised twice, firstly with a cardiac infarction and later, with other conditions. By the time of his visit, though, she was being cared for at home, according to Mr O’Chee, by two of her daughters, neither of whom is medically qualified.
There is no statutory definition of the expression "critically ill” for the purposes of s 1212A(a) of the Act. I was referred by the Respondent to a number of cases in which the Tribunal considered the expression. In Al Umari and Secretary, Department of Family and Community Services [2003] AATA 431 the Tribunal, in finding that the term should be given its ordinary meaning referred to dictionary definitions: “the person's condition must be severe or grave (Macquarie Dictionary 2nd Ed) or that there must be a crisis in the disease (New Shorter Oxford Dictionary 4th Ed)”. In Hague and Secretary, Department of Family and Community Services [2005] AATA 153, the Tribunal concluded that the Applicant's overseas travel to see his wife who was being treated for depression but was no longer hospitalised, was not a "critical illness". In Re Ramsay and Secretary, Department of Education and Workplace Relations (2010) AATA 278, the Applicant travelled overseas because his mother had been admitted to hospital several times and was not expected to live. The Tribunal accepted that the Applicant's mother had a serious illness at the relevant time, but was not satisfied that she was “critically ill”. The Tribunal concluded that "there needs to be something more pressing, or more decisive, or more a sense that an illness has really reached a time of change". In Keroloss and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 659, the Tribunal decided that the Applicant did not travel overseas for an acute family crisis. The Tribunal referred to “the language of the legislation [being] strict” and that notwithstanding that the Applicant’s mother’s condition was serious there was no “crisis point” at the time of the Applicant’s visit.
The medical reports indicate that Kevin’s grandmother was discharged from hospital on two occasions. The Respondent submitted that as she was allowed home her condition did not continue to be sufficiently serious to require hospitalisation. Mr O’Chee contended that from his understanding of the Chinese medical system from when he lived there is that patients are discharged at the earliest possible time and it is unacceptable to complain. After discharge they are then treated as outpatients at a neighbourhood hospital. He noted that while he and Kevin were in China, Kevin’s grandmother attended a neighbourhood hospital as an outpatient once or twice, although they did not accompany her and he did not know why she attended. The fact that she was being treated as an outpatient, he submitted, did not detract from the seriousness of her condition.
In my view, in a broad sense, the management of all hospital patients is undertaken in this fashion; hospital resources can universally be regarded as valuable commodities. Medical staff considered Kevin’s grandmother’s condition sufficiently stable to release her to go home where she would be treated with medication. There was no evidence of relapse or that her condition was not in fact adequately managed at home.
Having regard to the whole of the evidence, I am not satisfied that the nature and seriousness of Kevin’s grandmother’s illness could properly be described as "critical" during the relevant period. I therefore find that Kevin’s grandmother was not critically ill at the time of his visit. The circumstances therefore do not meet the criteria of s 1212A(a).
Also, when Kevin was in China from 2 November 2014 to 29 November 2014, his grandmother was not in hospital, having been discharged on 14 October 2014. Mr O’Chee said that Kevin’s grandmother’s myocardial infarction had been the ‘trigger’ for the visit. It was during her second hospitalization, he said, when they decided to make the trip. As I have observed, the legislation is strict; she was not hospitalised during Kevin’s visit. Even on a very broad view, Kevin’s grandmother’s discharge in relation to the myocardial infarction – the ‘trigger’ - was nearly two months before his visit and last discharge was about three weeks before his visit. The decision to make the trip was, according to Mr O’Chee, during her second hospitalisation, namely some weeks before the trip took place. I therefore find that the circumstances do not meet the criteria of s 1212A(b).
Further, for there to be an "acute family crisis", it is also necessary that Kevin’s grandmother comes within the definition of a "family member" for the purpose of the Act.
A "family member" is defined in s 23(14) of the Act, which provides, relevantly:
For the purposes of this Act …, each of the following is a family member in relation to a person (the relevant person):
(a) the … parent of the relevant person;
(b)…;
(c) any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person's relations described in paragraph (a) ...
Mr O'Chee contended that the discretion in s 23(14)(c) should be applied broadly. He said that Kevin's grandmother was like a parent because she had taken care of Kevin when he was a child, especially when his mother was travelling with her job, which was about 50 percent of the time.
I was referred by the Respondent to Van and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 91, where the Applicant went overseas to visit her grandfather. As in the present matter, the Applicant had been raised by her grandparents for some years as a child. The Tribunal found that the Applicant's grandparents were not family members for the purposes of the Act, notwithstanding that claimed to have had a closer relationship with her grandfather than with her own father. In the present matter, there was not even this contention.
Also, in Re Ghafoor and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 159, the Tribunal concluded that the Applicant's aunt was not a "family member" pursuant to s 23(14) of the Act notwithstanding she was the Applicant’s "surrogate mother" and had assisted in her upbringing.
I accept that Kevin may have had a close relationship with his grandmother for five years while living with her in China. However, the Act is clear - a “grandmother” does not fall within the provisions of s 23(14)(a) or (b) of the Act. While s 23(14)(c) of the Act permits a discretion to treat any other person as being one of the relevant person's relations, it is restricted to those relationships described in s 23(14)(a) or (b) of the Act.
Mr O’Chee referred to Centrelink’s website. He observed that, at least at the time he consulted it, it referred to an “immediate family member” when discussing reasons for travelling outside Australia when in receipt of Newstart allowance. Under the heading "Newstart Allowance while travelling outside Australia" stated at the relevant time:
…
If you leave Australia temporarily, you will only be paid outside Australia for a negotiated period of up to 6 weeks, for the following approved reasons:
· an acute family crisis. For example to visit an immediate family member who is critically ill (Tribunal’s emphasis)
Mr O'Chee referred me to be the definition of "immediate family member" in s 23 of the Act which states:
"immediate family member", of a person, means an individual:
(a)…
(b)… ;or
(c) who is a grandparent of the person; or
(d) ...
Mr O'Chee contended that the fact that website uses the term "immediate family member" indicates that in the discretion in s 23(14)(c) should be applied widely.
It was claimed, and I accept, that Kevin had a close relationship with his grandmother when he resided in China. It was pointed out at the hearing that the discretion in s 23(14)(c) is limited, in the present circumstances, to persons who should be treated as a parent. By 2014 Kevin had been living with his parents in Australia for a number of years I therefore consider, in those circumstances that his grandmother, who may have been his primary carer for about five years during his childhood, cannot, during the relevant period, be regarded as “a parent”.
As the SSAT said, it is “unfortunate” that the term "immediate family member" is used on the website in relation to acute family crisis. However, s 1212A specifically refers to family member, as defined in s 23(14), and not to the broader term of “immediate family member" defined in s 23(1). I accept that a website should be accurate, but its error cannot displace a specific definition in the legislation.
Mr O’Chee further contended that Kevin should be paid Newstart allowance because, in addition to the website, he relied on information provided by Centrelink officers. He claimed that he was informed that Kevin would be paid whilst overseas. He said that he attended Centrelink at Hurstville prior to their departure and was told that as Kevin was only going for six weeks there would be no problem with Newstart allowance continuing to be paid. He said that he was told that, in the event it was suspended, it would be “reinstated” on Kevin’s return. He also produced a letter he said he wrote to Kevin’s job provider notifying of Kevin’s proposed absence. When he noticed that payment had been suspended, on their return he immediately contacted Centrelink. From the Centrelink file note it appears Mr O’Chee claimed that the Centrelink officer to whom he had spoken had not informed him there were conditions attached to portability, although I find this to be improbable, especially if the full facts were provided to the Centrelink officer. In the unlikely event that such information was provided by staff to Mr O’Chee on Kevin’s behalf, he acknowledged in his evidence that they would have still travelled to China regardless of whether Kevin’s Newstart allowance was paid during the period of his absence.
The review officer appeared to consider Kevin’s case somewhat sympathetically but I observe Mr O’Chee reportedly told the review officer that Kevin had been “raised” by his grandmother and that she was in a serious condition in hospital. Neither of these representations were accurate at the date of that conversation on 1 December 2014.
In summary therefore I find that Kevin cannot be paid Newstart allowance whilst he was overseas from 2 November 2014 to 29 November 2014. He did not leave Australia to attend to an "acute family crisis", as defined.
DECISION
The decision under review is affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ............................[sgd]............................................
Associate
Dated 5 February 2016
Date(s) of hearing 19 January 2016 Advocate for the Applicant Mr Henry O'Chee Solicitors for the Respondent Department of Human Services
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