Patania and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 840
•19 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 840
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0465
GENERAL ADMINISTRATIVE DIVISION ) Re GUIDO PATANIA Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date19 September 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
.........[sgd S D Hotop]...........................
Deputy President
CATCHWORDS
SOCIAL SECURITY – overseas portability of social security payment – applicant received newstart allowance – applicant absent from Australia from 25 May 2007 to 19 August 2007 for purpose of visiting mother in Italy – applicant's mother not critically ill in that period – applicant's absence from Australia not for purpose of attending to acute family crisis – applicant's absence from Australia not an allowable absence – newstart allowance not payable to applicant during absence from Australia – decision under review affirmed
Social Security Act 1991 (Cth), s 1212A, s 1213, s 1215 and s 1217
REASONS FOR DECISION
19 September 2008 Deputy President S D Hotop Introduction
1. Guido Patania (“the applicant”) was receiving newstart allowance under the Social Security Act 1991 (Cth) (“the Act”) when, on 14 May 2007, he notified Centrelink that he planned to leave Australia on 25 May 2007 and travel to Italy to visit his mother who was seriously ill, and to return to Australia on 20 August 2007. He provided to Centrelink a medical certificate from a medical practitioner in Italy, handwritten in the Italian language, regarding his mother’s medical condition.
2. The applicant departed Australia on 25 May 2007 and returned to Australia on 20 August 2007.
3. In the meantime on 28 May 2007 Centrelink obtained, from its Language Services Unit, an English translation of the abovementioned medical certificate, and a Centrelink officer subsequently, by letter dated 27 June 2007, informed the applicant that it had been decided, on the basis of the information provided by him, that newstart allowance was not payable to him while he was absent from Australia.
4. That decision was affirmed by a Centrelink Authorised Review Officer on 19 November 2007 and the latter decision was in turn affirmed by the Social Security Appeals Tribunal on 14 January 2008.
5. The applicant has applied to this Tribunal for review of the decision of the Social Security Appeals Tribunal.
The Issue and the Tribunal’s Determination
6. The issue for the Tribunal’s determination is whether newstart allowance was payable to the applicant, in accordance with the relevant provisions in Part 4.2 of the Act relating to the overseas “portability” of social security payments, in the period from 25 May 2007 to 19 August 2007 when he was absent from Australia (“the relevant period”).
7. For the reasons which follow, the Tribunal has determined that newstart allowance was not payable to the applicant in the relevant period.
The Relevant Legislation
8. Pursuant to ss 1213, 1215 and 1217 of the Act, in the case of a person who is receiving newstart allowance in Australia, newstart allowance continues to be payable to that person, while that person is absent from Australia, for a maximum period of 13 weeks’ absence from Australia, provided that such absence is an “allowable absence” – that is (as stated in column 4 of item 15 in the table at the end of s 1217):
“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”.
9. The meaning of the phrase “acute family crisis”, for the purposes of Part 4.2 of the Act, is explained in s 1212A which provides:
“ 1212A 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) for a purpose relating to the death of a family member; or
(d)for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
(i) is facing a family member; and
(ii) is beyond the control of the family member.”
The Evidence
10. The evidence before the Tribunal comprised:
· the “T Documents” (T1-T26, pp 1-90) lodged by the Secretary, Department of Education, Employment and Workplace Relations in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1, A2 and A3 tendered in evidence by the applicant; and
· the oral evidence of the applicant.
The applicant’s evidence
11. The applicant’s oral evidence may be summarised as follows:
· the applicant was informed by his sister (who lives in Italy) that their mother was ill and wanted to see him and that Dr Gianino (his mother’s treating specialist) wanted to talk to him about his mother’s health;
· he was given more specific information by his sister about 7 days before he left Australia, namely, that Dr Gianino had told her that their mother was suffering from gonarthrosis and that the situation was serious, and that, because of their mother’s advanced age (her date of birth being 12 June 1927), there was a risk that she could have died;
· his mother was admitted to hospital in her home town in Italy on 23 May 2007 and she was discharged on 24 May 2007 (the day before he arrived in Italy) into the care of Dr Gianino, and she then returned to her home;
· his sister lives in the same town in Italy as his mother, but not in his mother’s house, but his sister stayed with his mother when she was very ill;
· his sister moved into his mother’s house about 2 weeks before his mother went into hospital and she stayed on after his mother returned home from hospital;
· he also stayed at his mother’s house while he was in Italy;
· after his mother was discharged from hospital her medical treatment consisted of medication prescribed by Dr Gianino and she continued to be under the care of Dr Gianino;
· his sister did “everything” for his mother and he also did whatever he could do to help while he was staying with her;
· about 2 weeks after his arrival in Italy, his mother “got a little better”;
· Dr Gianino told him that his mother was at risk of a heart attack because of her age;
· he often travels to Italy to visit his mother and his 6 siblings, because he is the only family member living in Australia.
The medical evidence
12. The medical certificate provided to Centrelink by the applicant on 14 May 2007, referred to in paragraph 1 above, was issued by Dr Alberto Gianino, Surgeon and Specialist in Rheumatology and Internal Medicine, on 4 May 2007. According to the English translation of that medical certificate, the applicant’s mother was suffering from:
“serious bilateral gonarthrosis, bilateral phlebitis of the lower limbs, arterial hypertension”
and it went on to state:
“Because of her medical conditions the patient needs assistance from her son, Guido Patania …” (T6, T7)
13. The applicant tendered in evidence a medical certificate of Dr Gianino dated 18 March 2008 (together with an English translation thereof) which certified that the applicant’s mother was suffering from :
“severe bilateral gonarthrosis, bilateral phlebitis of the lower limbs, arterial hypertension”
and went on to state:
“Due to the grave and severe pathologies affecting this patient, she needs assistance from her son, Mr Guido Patania …” (Exhibit A1)
14. The applicant also tendered in evidence a letter from Dr J Di Camillo, dated 15 July 2008, as follows:
“TO WHOM IT MAY CONCERN,
Re: Guido Patania …
I certify that I am a qualified medical practitioner (MBBS, UWA – 1972) practising in the State of Western Australia.
I confirm I speak and write Italian fluently and was asked by the abovenamed patient to translate a medical certificate written in Italian by Dr Alberto Gianino, dated 18.3.2008.
It states that the patient’s mother, Mrs Tempio Gaetana (DOB: 12.6.27), was suffering with grave illnesses including bilateral arthroses, lower limb phlebitis and hypertension.
It goes on to say that the grave severe pathologies suffered by Guido’s mother required his care and assistance.
I understand Mr Patania did assist his mother (in Italy) for the period 22.5.08 – 19.8.08.
In my opinion this kind of assistance was totally warranted considering the critical nature of Guido’s mother’s illnesses.” (Exhibit A2)
15. Finally, the applicant tendered in evidence a medical certificate of Dr Gianino dated 5 September 2008 (together with an English translation thereof) which certified that the applicant’s mother was suffering from:
“grave bilateral gonarthrosis and bilateral phlebitis of the lower limbs for many years”
and went on to state as follows:
“The above pathology during times of a new acute stage, make walking difficult without constant help from an escort.
Mrs Tempio Gaetana succumbed to an acute crisis of her illness with swelling, heat and articular deficit to both her knees. On top of that she came out with thrombophlebitis to the lower limbs, with oedema, redness and pain in her calves.
On this grounds, I had to notify her son Guido Patania, who lives in Australia, to immediately come to assist his mother because of her serious medical condition and her necessity to have continuous assistance.” (sic) (Exhibit A3)
Analysis
16. The applicant’s entitlement to continue to be paid newstart allowance during the period of his absence from Australia from 25 May 2007 to 19 August 2007 depends (relevantly) on whether that absence was for the purpose of attending to an “acute family crisis” as defined in s 1212A of the Act.
17. The applicant submitted that his absence from Australia in the relevant period was for the purpose of visiting his mother who was then critically ill, and it was therefore, in accordance with para (a) of s 1212A of the Act, for the purpose of attending to an “acute family crisis”.
18. There is no dispute that the applicant’s absence from Australia in the relevant period was for the purpose of visiting his mother, and that his mother is a “family member” within the meaning of para (a) of s 1212A (see the definition of the expression “family member” in s 23(14) of the Act). The matter in dispute is whether the applicant’s mother was “critically ill”, within the meaning of para (a) of s 1212A, in the relevant period.
19. The Tribunal is satisfied, on the basis of the abovementioned medical certificates issued by Dr Gianino, that the applicant’s mother is, and was at all material times, suffering from bilateral gonarthrosis (that is, inflammation of both knee joints), bilateral phlebitis of the lower limbs (that is, inflammation or swelling of a vein or veins in both legs) and arterial hypertension (that is, persistently high arterial blood pressure), and that each of those medical conditions is, and was at all material times, serious, grave or severe, having regard to her age (the Tribunal notes that she turned 80 years of age on 12 June 2007 in the relevant period).
20. The question is, however, whether the applicant’s mother was rendered “critically ill”, by reason of the abovementioned medical conditions, in the relevant period.
21. The Tribunal notes that Dr Gianino, in the medical certificate issued by him on 5 September 2008 (Exhibit A3), certified that the applicant’s mother had suffered from the gonarthrosis and phlebitis conditions “for many years” and, on the basis of that medical certificate, the Tribunal is satisfied that each of those conditions is chronic. The Tribunal is, furthermore, prepared to infer that her hypertension is also a chronic condition.
22. In the medical certificate of 5 September 2008 Dr Gianino also noted that the applicant’s mother had “succumbed to an acute crisis” in respect of her gonarthrosis and phlebitis conditions. Dr Gianino does not specify the date on or about which that development occurred but the Tribunal is prepared to infer that it occurred shortly before the applicant departed Australia for Italy on 25 May 2007. The Tribunal notes, however, that Dr Gianino referred to the effect on the applicant’s mother of the abovementioned medical conditions “during times of a new acute stage” as “mak(ing) walking difficult without constant help from an escort”.
23. The Tribunal notes the letter dated 15 July 2008 from Dr Di Camillo (set out in paragraph 14 above) but it derives little assistance from that letter because it consists largely of a superfluous English translation of Dr Gianino’s medical certificate of 18 March 2008 and, given that Dr Di Camillo has no first-hand knowledge of the state of health of the applicant’s mother and wrote that letter on the basis of Dr Gianino’s medical certificate, the reference in the last sentence of his letter to “the critical nature of [her] illnesses” carries very little weight.
24. The Tribunal notes the applicant’s evidence that his mother was hospitalised for the period 23-24 May 2007 by reason of the abovementioned medical conditions but it also notes that Dr Gianino made no reference to such hospitalisation in his abovementioned medical certificates of 18 March 2008 and 5 September 2008 and the applicant did not produce any evidence to support his assertion that his mother had been so hospitalised. The Tribunal notes, furthermore, that the Authorised Review Officer in this matter recorded that the applicant had told him that his mother had not been hospitalised (T21, pp 46, 48) and the Social Security Appeals Tribunal made no mention, in its reasons for decision (T2), of such hospitalisation.
25. Finally, the Tribunal notes the applicant’s evidence that his mother lived at her home for the whole of the relevant period, although she was dependent on assistance from her daughter who stayed with her when necessary and from the applicant who stayed with her in the relevant period.
26. There is no statutory definition of the expression “critically ill” for the purposes of s 1212A(a) of the Act. The Tribunal notes, however, that the expression “critical illness” is defined in the Online Medical Dictionary as follows:
“A disease or state in which death is possible or imminent.”
In the Tribunal’s opinion, that meaning accords with the common understanding of the description of a person’s state of health as “critically ill” and it is appropriate that the expression “critically ill” in para (a) of s 1212A of the Act be understood in that sense.
27. Having regard to the whole of the evidence, the Tribunal is not satisfied that the nature and seriousness of the abovementioned medical conditions suffered by the applicant’s mother in the relevant period were such that, by reason thereof, death was possible or imminent in her case at that time, and the Tribunal is, accordingly, not satisfied that she could properly be described as critically ill in the relevant period.
28. It follows that the Tribunal is not satisfied that the applicant’s absence from Australia from 25 May 2007 to 19 August 2007 was “for the purpose of visiting a family member who is critically ill”, within the meaning of para (a) of s 1212A of the Act.
29. Furthermore, the Tribunal, having regard to the whole of the evidence, is not satisfied that the applicant’s abovementioned absence from Australia was “for the purpose of visiting a family member who is hospitalised with a serious illness”, within the meaning of para (b) of s 1212A of the Act. The Tribunal has serious reservations regarding the truth of the applicant’s evidence that his mother was hospitalised for the period 23-24 May 2007 but, even if that evidence is true, there is no evidence that his mother was hospitalised in the relevant period and no suggestion that the applicant was aware, when he arranged his trip to Italy, that his mother was going to be hospitalised and that he arranged that trip for the purpose of visiting his mother in hospital.
Conclusion
30. The Tribunal concludes, therefore, that neither para (a) nor para (b) of s 1212A of the Act is satisfied in this case. No reliance was placed by the applicant on either para (c) or para (d) of s 1212A and the Tribunal, having regard to the evidence before it, is satisfied that neither of those paragraphs is applicable in this case.
31. Accordingly, the Tribunal finds that the applicant’s absence from Australia from 25 May 2007 to 19 August 2007 was not for the purpose of attending to an “acute family crisis” within the meaning of s 1212A, and column 4 of item 15 in the table at the end of s 1217, of the Act. There was no suggestion, and no evidence before the Tribunal, that the applicant’s abovementioned absence from Australia was for either of the other purposes referred to in column 4 of item 15 in the table at the end of s 1217 of the Act (set out in paragraph 8 above). It follows that the applicant’s abovementioned absence from Australia was not an “allowable absence” within the meaning of s 1217 of the Act.
32. The Tribunal concludes, therefore, that newstart allowance was not payable to the applicant in the period from 25 May 2007 to 19 August 2007 when he was absent from Australia.
decision
33. For the above reasons the Tribunal affirms the decision under review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: .............[sgd D Brodie]....................................
AssociateDate of Hearing 15 September 2008
Date of Decision 19 September 2008
Representative of Applicant Self-representedRepresentative of Respondent Ms M Conlon
Legal Services Branch
Centrelink
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