Panaia; Department of Family and Community Services
[2001] AATA 596
•27 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 596
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/45
GENERAL ADMINISTRATIVE DIVISION )
Re Secretary, Department of Family and Community Services
Applicant
And Francesco Panaia
Respondent
DECISION
Tribunal Mr RD Fayle, Senior Member; Dr D Weerasooriya, Member
Date27 June 2001
PlacePerth
Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being the decision of the Social Security Appeals Tribunal of 17 January 2000 and dated 19 January 2000 is set aside and in its stead the Tribunal decides that the decision of the respondent on 12 June 1996, to raise and recover an overpayment of $785.72, is affirmed.
...........(-sgd RD Fayle-)............
Senior Member
CATCHWORDS
SOCIAL SECURITY – sickness allowance – overpayment – recipient qualifies only if in Australia – respondent's absence from Australia alleged to have been in order to seek medical treatment of a kind not available in Australia – whether respondent's primary purpose in leaving Australia was to seek medical treatment – whether such treatment is of a kind not available in Australia – whether medical treatment is acceptable under Australian standards
Social Security Act 1991 ss 666, 674 and 1223
Secretary of Social Security and Barbara Wills, [1998] AAT 12956
REASONS FOR DECISION
27 June 2001 Mr RD Fayle, Senior Member; Dr D Weerasooriya, Member
This matter was first set down for hearing on 8 February 2001. Arrangements had been made with the respondent to be in attendance from Indonesia by telephone. The applicant, represented by Mr Kees De Hoog, Manager of the Centrelink Advocacy Law Team was present. The Tribunal contacted the telephone number previously provided by the respondent. A person who identified herself as Mrs Melly Panaia, the respondent's wife, answered the telephone. Mrs Panaia told the Tribunal that the respondent was not available as he was sedated, having taken medication prescribed by the hospital doctor for blood pressure. Mrs Panaia told the Tribunal that she did not know when the applicant would be available nor whether or when he was intending to return to Australia. Mrs Panaia, in answer to questions asked told the Tribunal that she is not an Australian citizen and that she and the respondent were married in April 1999 in Indonesia.
As a result of the aborted hearing, the Tribunal issued directions to require the respondent to file with the Tribunal, within 3 months, any documentation in support of his contention that he left Australia in March 1996 to seek medical treatment of a kind not available in Australia and, any further submissions in this respect. The applicant was given time to respond should any further documents or submissions be received from the respondent. The matter was then set down for review on the papers after the expiry of the time limits set in the direction.
Nothing further was heard or received from the respondent. The Tribunal is satisfied that the respondent received the correspondence and direction sent by the Tribunal in this respect.
On 8 June 2001 the members of the Tribunal decided the matter on the papers and this is that decision.
The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975; a report from Mr Paul Rattray, Director, Education Training Consulting ("ETC") International and researched by Mr Sigid Wusono, Senior Research Assistant. The report is entitled "Jamu Case Report" and dated 19 June 2000. The Tribunal also had before it a letter of 24 March 2000 from the applicant to the Director of Health Services Australia and a reply dated 13 April 2000 from Dr D L Clifford, Health Services Australia, Medical Adviser.
The decision under review is that of the Social Security Appeals Tribunal ("SSAT"), Appeal Number P20017, of 17 January 2000 and dated 19 January 2000. The SSAT decided that the then applicant, (the respondent in these proceedings), was absent from Australia from 25 March 1996 in order to seek medical treatment of a kind not available in Australia. As a result the SSAT held that the [the respondent] was entitled to receive sickness allowance for the first three months of his absence from Australia and there was therefore no debt to the Commonwealth arising from payment of sickness allowance for that period, totalling $785.72.
The Tribunal was somewhat disadvantaged in not being able to obtain evidence first hand from the applicant. However, the best it can conclude about the applicant's departures from and returns to Australia since 25 March 1996, as gleaned from the SSAT decision and other material, is that he was present in Australia in February 1996 when he lodged his claim for sickness allowance (T13). He left Australia on 25 March 1996 and returned in or about February 1997 till April 1997. He then departed for overseas where he spent a brief time in Thailand. Apparently the respondent then went to and remained in Indonesia until about August 1999. It is noted that according to Mrs Panaia, she and the respondent married in April 1999. It is not clear as to how long the respondent spent in Australia but he was present at the SSAT hearing on 17 January 2000. The respondent was present in Australia on 3 March 2000 to attend and interlocutory matter at this Tribunal. The respondent notified the Tribunal that his address for service of notices from 25 March 2000 is in Indonesia and it would appear from the correspondence file that he has remained there since.
The relevant legislation (at the time the decision was made)
Qualification for sickness allowance
666.(1) A person is qualified for sickness allowance in respect of a period if:
(a) the person is incapacitated for work or study throughout the period because of sickness or an accident; and
(b) the incapacity is caused wholly or virtually wholly by a medical condition arising from the sickness or accident; and
(c) the incapacity is, or is likely to be, of a temporary nature; and
(ca) one of the following applies:(i) immediately before the incapacity occurred the person was in employment (whether the person was self-employed, or was employed by another person, on a full-time, part-time, casual or temporary basis) and the Secretary is satisfied that, when the incapacity ends, the employment will be again available to the person (whether or not the same kind of work will be available);
(ii) (not relevant)
(iii) (not relevant)
and
(e) before the period begins the person has turned 21; and
(f) before the period ends the person has not turned, or is not likely to turn, pension age; and
(g) throughout the period, the person is an Australian resident; and
(h) the person is in Australia throughout the period.
Temporary absence from Australia
674. For the purposes of section 666 and 667, where:
(a) a person is temporarily absent from Australia; and
(b) the person is absent in order to seek medical treatment of a kind that is not available in Australia;
the person is taken to be in Australia during:
(c) if the period does not exceed 3 months –the whole of that period; or
(d) if the period exceeds 3 months—the first 3 months of that period
Debts arising from lack of qualification, overpayment etc.
Recipient not qualified for payment or amount not payable
1223.(1) Subject to subsection (1B), if an amount has been paid to a person by way of social security payment or fares allowance on or after 1 October 1997 and:
(a) the recipient was not qualified for the social security payment or fares allowance when it was granted; or
(b) the amount was not payable to the recipient;
the amount so paid is a debt due to the Commonwealth.
The issues
There is no dispute that the respondent was qualified for sickness allowance in terms of s666 of the Act except for paragraph 666(1)(h) for the period in question as the respondent was then out of Australia. As mentioned by way of the previous footnote, it is not an issue that the respondent did not qualify for sickness allowance, as it was not pertinent to the decision under review. The issue before the Tribunal is whether the respondent left Australia on 25 March 1996 and he was temporarily absent from Australia (for at 3 months) in order to seek medical treatment of a kind that is not available in Australia.
Evidence & discussion.
The SSAT summarised the evidence before it as follows:
"By 1995, Mr Panaia was living in Darwin. He heard from Asian people he met there that in Indonesia, Thailand and the Philippines, where conventional psychiatric and mental health services were either non-existent or very expensive, most of the treatment for these types of illnesses was administered, successfully, by traditional medical practitioners. Mr Panaia said that, at first, he tried to find out whether such medicine was practised in Australia, because he could not really afford to go overseas for it. He made detailed enquiries in Darwin and Perth and to the best of his ability, sought information about other states. After some time, he became satisfied that traditional treatment of the kind which had been described to him was not available in Australia and he made arrangements to go to Jakarta, Indonesia to seek it.
Mr Panaia told the Tribunal that, having decided to go to Indonesia, he telephoned Centrelink in Darwin. He told a male officer that he was on sickness allowance and that he was going overseas to seek medical treatment. The officer told him that his sickness benefit would continue while he was overseas provided the reason he was going was to seek medical treatment not available in Australia.
Mr Panaia said that he told his Australian psychiatrist that he intended to go to Indonesia to seek treatment and the doctor had not tried to discourage him from doing so. He reiterated that there was nothing more he could do for him, except to continue drug therapy. Being aware that one reason for Mr Panaia's hesitation over the trip to Asia was the cost of travel, the psychiatrist did not suggest that he could obtain similar traditional treatment in Australia.
Mr Panaia did not go with any specific contacts of medical practitioners in Jakarta, but, after living there for several weeks, he began to understand how the health system worked. There were doctors of the conventional kind who treated wounds, did surgery and treated diagnosable organic diseases with the usual drugs. However, unless it was absolutely necessary, for serious surgery, for instance, the mass of the people could not afford to go to those doctors. For all other ailments, they went to clinics conducted by trained and qualified practitioners of traditional medicine. These practitioners carried almost all the mental health load. As Mr Panaia had heard in Darwin, the Government mental health system was limited to a few very expensive institutions, which were quite inaccessible to most of the people. Mr Panaia sought out some of these traditional practitioners and, over the three years he was in Indonesia, his treatment was overseen by about five of them at various times.
Mr Panaia said that he remained in Indonesia until about August 1999, except for a visit to Australia from February to April 1997 and a short visit to Thailand to investigate the medical treatment available there. It turned out that Thailand had little to offer in the area, which concerned him. Mr Panaia referred the Tribunal to a comment by the ARO that he applied for sickness allowance during his sojourn in Australia in 1997. The implication of this comment was that the treatment he had undergone in Indonesia up to that time had not been effective, although the significance of this was not explained. Mr Panaia said that this was the wrong conclusion. His conditions were serious and the Indonesian treatment, although already proving beneficial, had not had time to work a full cure by then. In any case, Mr Panaia questioned the relevance of the effectiveness of the treatment to a decision as to whether or not he went overseas to seek it.
Mr Panaia said that the practitioners of traditional medicine in Indonesia were the principal source of medicine for the mass of the people. Some European residents also went to them, especially for those illnesses and conditions, which were not tangible, such as mental health or dietary problems. These therapists practised what was known as "jamu" medicine. They worked from established premises in the villages and displayed their names and sometimes their qualifications on signs at the front. They had all qualified at courses of training at various institutions. Mr Panaia knew that a national self-regulatory body of jamu practitioners controlled the standard and content of this training and he had an idea that the Government also had a role in this, but he was not certain. The jamu practitioners had to be registered with their national body before they could practise, but Mr Panaia was not sure whether or not there was also a system of Central Government registration. The local authorities certainly knew about the practitioners in their area and appeared to have some role in monitoring them. The national jamu association clearly assumed the principal responsibility for the standard of the practitioners and Mr Panaia had been aware of the exercise by it of this responsibility. Mr Panaia said that, at home, he still had the business cards of some Indonesian practitioners who had attended him.
According to Mr Panaia, the jamu practitioners who treated to [sic] him in Indonesia were mostly women. They first acquainted themselves with his history and then spent a long time in conversation with him. They then designed a course of treatment to meet his particular case. This treatment could consist of various components, including diet, herbal medicines, exercises and massage. When treatment was commenced, the various components of it were often administered by people, comparable to the para-medicals who support the medical profession in Australia. The main difference, as far as Mr Panaia could see, was that the practitioners and the para-medicals charged much less that their counterparts in Australia. For instance, the jamu practitioners usually charged about the equivalent of $A5.00 for a consultation which might take up to two hours, and the para-medicals usually charged about $A2.00 to $3.00 for each service. Mr Panaia told the Tribunal that it was normal for invoices to be usually issued for consultations and services. He had an idea that this was because the tax authorities scrutinised the activities of these people closely. He had not kept any of the invoices rendered to him."
The Tribunal makes some observations about this evidence. Firstly, there was no supporting documentary evidence for the respondent's claim that he was actually treated by accredited or licensed practitioners in Indonesia. No invoices, receipts or other supporting evidence, such as diarised notes of appointments, were produced. This is despite the respondent's claim that "it was normal for invoices to be issued for consultations and services".
Assuming that the respondent's evidence is reliable (and this Tribunal had no opportunity to test his veracity), there still remains the question of whether the treatment which he claims to have had in Indonesia is "medical treatment" and "of a kind not available in Australia".
The expert evidence before the Tribunal includes the report of Mr Paul Rattray referred to above. The following are relevant extracts from that report:
"Jamu Case Report – by Mr Paul Rattray, Director, Education Training Consultant (ETC) International
Initial research into the Jamu medicine industry in Java indicates that the industry is relatively well regulated with formal regulations applying to the ingredients used in jamu medicine, the preparation of therapies, qualifications of practitioners and suitability of premises. Realistically however, a large proportion of jamu practitioners are unregulated and unqualified to practice jamu medicine, even though they have been practicing it for centuries.
Even for those who are qualified and regulated, it is doubtful whether these qualification [sic] or regulations would be acceptable under Australian standards. Preliminary findings suggest that jamu medicine is a large and diverse industry in Java and that a more detailed study needs to focus on the particular category of jamu used in the defendant's treatment, the practitioner's qualifications and the specific therapy regime applied in this particular case."
…
"Despite the widespread use of modern medicines, jamu is still a hugely popular and highly regarded therapy in Indonesia."
…
"In Java, the 'tukang jamu gendong' (vendors who carry around bottles of special brews in baskets on their backs and dispense on-the-spot jamu treatments) are still a common sight in Java and even parts of Jakarta. Chinese jamu specialist [sic] also have shops, where after a 'consultation', one receives a special concoction specifically prepared for a particular ailment. Another common sight (or sound) is that of the 'jamu salesmen' dispensing jamu medicines and treatments with a loud speaker in the local markets, amazing onlookers with incredible tales and slights of hand. (Highly entertaining, however of dubious medical value.)"The Tribunal notes that there is no evidence before it of "the category of jamu used in the [respondent's] treatment, the practitioners' qualifications and the specific therapy regime applied in [his] particular case".
Dr D L Clifford, in his report of 13 April 2000 states "although I have no knowledge of Jamu medicine and Jamu medical practitioners, I think it is unlikely that this form of management would be available in Australia.
The Tribunal accepts that the principal reason for which the respondent left Australia on 25 March 1996 was to seek treatment overseas for his diagnosed condition of schizophrenia.
The Tribunal accepts that jamu treatment, as discussed in the report by Paul Rattray is more likely than not unavailable in Australia, as opined by Dr Clifford.
The only matter of contention therefore is the question of whether jamu treatment, in the context of this case, is "medical treatment" as that term is used in s674 of the Act. That term is not defined in the Act. This fact was noted by Senior Member J Kiosoglous, in Secretary of Social Security and Barbara Wills, [1998] AAT 12956, a case involving an overpayment of sickness allowance when absent from Australia. The factual basis in the Wills case was based on a psychiatric diagnosis. The issue was that of s674 of the Act, as in this case. The learned Senior Member made the following observations, which, in the opinion of this Tribunal, are directly relevant to the present case.
"… the Tribunal inclines towards the view that what constitutes "treatment" may vary widely according to the nature of the medical condition.…. The Tribunal favours the view that the most common sense notion of what constitutes 'medical treatment' and therefore that which is the most likely to have been intended by the legislature is that supported by the evidence of Professor Goldney and Dr Gormly, namely, that '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." (paragraph 21)
The Tribunal notes that the term "medical practitioner" is defined in s23(1) of the Act as follows:
"medical practitioner" means a person registered and licensed as a medical practitioner under a State of Territory law that provides for the registration or licensing of medical practitioners."
In terms of s674 of the Act, common sense dictates that the restriction of a "medical practitioner having to be registered or licensed under a State or Territory law" cannot apply as that provision concerns foreign "medical treatment". So, clearly, what the learned Senior Member was referring to in citing Professor Goldney and Dr Gormly can only be a reference to persons registered or licensed in their particular jurisdiction to carry out medical treatment. In the opinion of the Tribunal, should a jamu practitioner in Indonesia be so registered or licensed by the relevant governmental authority then, that would suffice for the purpose of s674 of the Act.
In the opinion of the Tribunal, to meet the standard of "medical treatment" required by s674 of the Act, the following conditions must be met:
the foreign practitioner is either "State" licensed or registered;
has made a diagnosis or by examination, has confirmed an existing diagnosis, as that term is ordinarily construed as relating to a finding of the cause of the ailment in relation to the particular system of medicine;
has formulated a treatment plan, which in the opinion of the Tribunal, should be properly documented; and
has conducted that plan, either personally or under his or her oversight, including a review (all properly documented).
The Tribunal notes that s674 of the Act provides for an exception to the s666(1)(h) requirement for qualification for sickness allowance. That is, it provides an exception of the need for the claimant to be in Australia throughout the period (of claim). Subparagraph 674(b) establishes a condition that the person's absence is "in order to seek medical treatment …". In the opinion of the Tribunal this condition cannot be satisfied unless there is objective evidence that the person not only left Australia with that as a principal objective, but in fact obtained that treatment. In the opinion of the Tribunal, the s674 exception to the s666(1)(h) precondition cannot be satisfied by a subjective test that the person considered that to be the principal reason for their departure overseas. Whilst s674 is clearly about a purpose for leaving Australia – to seek the medical treatment – that purpose must be demonstrated by overt acts. In this case, the only relevant overt act (or standard of proof) can be what in fact the person did when they arrived at the destination where they intended to seek the medical treatment in question. In the opinion of the Tribunal it is not sufficient, for the purpose of s674 of the Act, for a claimant merely to asserting that it was their intention at the time of departure to seek "medical treatment …". To satisfy the requirement of s674 of the Act claimants must also demonstrate objectively that that treatment was indeed pursued. Whether, in the opinion of the claimant, that treatment cured or relieved symptoms of the complaint/disease/injury is not to the point. It is the seeking and obtaining of treatment, not its outcome, which matters.
Conclusion
In terms of the above the evidence before the Tribunal does not support a finding of fact that the respondent sought (or indeed received) medical treatment as that term is used in s674 of the Act.
DecisionFor the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being the decision of the Social Security Appeals Tribunal of 17 January 2000 and dated 19 January 2000 is set aside and in its stead the Tribunal decides that the decision of the respondent on 12 June 1996, to raise and recover an overpayment of $785.72, is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RD Fayle, Senior Member; Dr D Weerasooriya, Member
Signed: .................(-sgd W Treasure-)...................
AssociateDate/s of Hearing 8 February 2001 and 8 June 2001
Date of Decision 27 June 2001
Counsel for the Applicant Mr K de Hoog
Counsel for the Respondent unrepresented
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