Paul and Secretary, Department of Social Services (Social services second review) - [2024] AATA 3515

Paul and Secretary, Department of Social Services (Social services second review) [2024] AATA 3515 (3 October 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9824
Re:Shrabani Paul
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:3 October 2024
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
…....[SGD]............
Member W Frost
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension –maximum portability period – eligible medical treatment – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 43
Social Security Act 1991 ss 1212, 1215, 1217, 1218AAA, 1218C
Social Security (Administration) Act 1999 80, 179
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Osmani and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605
Secretary, Department of Social Security and Howse [1993] AATA 231
Younan and Secretary, Department of Employment and Workplace Relations [2006] AATA 738
Secondary Materials
Social Security Guide (version 1.319), Services Australia
REASONS FOR DECISION
Member W Frost
3 October 2024
INTRODUCTION

The Applicant, Ms Shrabani Paul, applied for review by the General Division of the Administrative Appeals Tribunal (Tribunal) of a decision to suspend her Disability Support Pension (DSP) due to exceeding the applicable ‘maximum portability period’ of 28 days while outside of Australia. For the following reasons, the Tribunal affirms the decision, meaning that Ms Paul’s application is unsuccessful.
ISSUE
The issue for determination by the Tribunal was whether Ms Paul’s DSP should have been suspended from 16 December 2022 to 29 January 2023.
BACKGROUND
In September 2022, Ms Paul was granted DSP with effect from 8 June 2022.[1]
[1] Exhibit 1, page 81.
On 18 November 2022, Ms Paul departed Australia.[2]
[2] Ibid., page 98.
On 16 December 2022, Services Australia (the Agency) suspended Ms Paul’s DSP, because she had exceeded the maximum 28 day ‘portability period’ for the DSP under the Social Security Act 1991 (Act), which period of time commenced on her departure from Australia on 18 November 2022.[3]
[3] Ibid., page 41.
On 30 January 2023, Ms Paul returned to Australia and her DSP was restored from that date.[4]
[4] Ibid., pages 43-45 and 98.
In May 2023, following Ms Paul’s request for a review of the DSP suspension, the Agency determined that the evidence was ‘not sufficient for payment of your Disability Support Payment whilst you were outside Australia’.[5]
[5] Ibid., pages 48-49 and 84-86.
In August 2023, after Ms Paul’s request for a further review, an Authorised Review Officer (ARO) affirmed the decision to suspend her DSP from 16 December 2022, because Ms Paul had exceeded the 28 day portability period and the ARO was not satisfied that the overseas travel was undertaken for the purpose of seeking ‘eligible medical treatment’.[6]
[6] Ibid., pages 60-63 and 87-88.
In November 2023, following Ms Paul’s application to the Social Services and Child Support Division of the Tribunal (AAT1) for review of the ARO decision, the AAT1 affirmed that decision.[7]
[7] Ibid., pages 9-12.
In December 2023, Ms Paul lodged an application with the Tribunal for review of the AAT1 decision.[8]
[8] Ibid., pages 1-8.
LEGISLATION & POLICY
Section 1215 of the Act relevantly provides that:
(1)If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:
(a) throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;
(b) throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person.
Note: Section 1217 defines the person's maximum portability period and portability period for the payment.
Subsection 1217(1) of the Act states that the person’s ‘maximum portability period’ for a relevant social security payment is ‘the period referred to in column 5 of the table at the end of this section’ that is applicable to the particular payment ‘(as specified in column 2 of the table)’ and ‘the class of persons to which the person belongs (as specified in column 3 of the table)’. That table in the Act relevantly provides that the ‘maximum portability period’ for the DSP is a ‘total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months’.
Subsection 1217(2) of the Act provides that 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’ in the table, here relevantly being ‘to seek eligible medical treatment’.
Under section 1212 of the Act, ‘eligible medical treatment’ means ‘medical treatment of a kind that is not available to the person in Australia’.
Subsection 1217(4) of the Act sets out the operation of a person’s portability period for the DSP where the ‘maximum portability period’ is not unlimited and relevantly states that it is the period:
(a)beginning at the commencement of the period of absence; and
(b)ending at the earlier of the following times:
(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;
(ii) the end of the period that is the person's maximum portability period for the payment.
Subsection 80(1) of the Social Security (Administration) Act 1999 (Administration Act) provides that if the Secretary is satisfied that a social security payment is being, or has been paid to a person who is not, or was not, qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
For completeness, the Tribunal notes that, under section 179 of the Administration Act, an application may be made to the Tribunal for review of a decision of the AAT1 made under subsection 43(1) of the AAT Act.
The Tribunal also notes that, although government policy is not binding, it will ordinarily be followed unless there are cogent reasons not to do so.[9] The relevant policy in relation to the portability of social security payments is contained in the Social Security Guide (Guide) and the Tribunal is not aware of any cogent reason for not following its terms. At paragraph 7.1.2.20 of the Guide it states that:[10]
Eligible medical treatment, in relation to a recipient, means medical treatment of a kind that is not available to the recipient in Australia. It could include specialised or new types of surgery such as transplants or other kinds of treatment. Such a determination would be guided by the opinions of registered Australian medical practitioners. However, treatment does not necessarily satisfy the definition of eligible medical treatment just because a doctor approves or recommends the treatment. For example, iridology, herbal treatment, faith healing and similar treatments are not considered to be eligible medical treatment.
If the recipient's circumstances satisfy the eligible medical treatment criteria, then payments may continue for a specific negotiated period of no longer than the allowed portability period for the qualifying payment. The length of payment will be restricted to the period of time required to complete the treatment, including recuperation and any allowances that must be made for return travel.
CONSIDERATION
[9] Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.
[10] Exhibit 1, page 36.
Was Ms Paul seeking ‘eligible medical treatment’ not available to her in Australia?
Ms Paul contended that she was absent from Australia because she was obtaining ‘eligible medical treatment’ in India, therefore attracting the exception in section 1217 of the Act, meaning that her DSP should not have been suspended after the applicable 28 days ending on 15 December 2022.
The Tribunal has considered the meaning of ‘eligible medical treatment’ in various decisions. In Secretary, Department of Social Security and Howse [1993] AATA 231, the Tribunal determined that the question of whether medical treatment is a kind that is not available in Australia must be decided on an objective basis and not on the perception of the patient. Additionally, in Younan and Secretary, Department of Employment and Workplace Relations [2006] AATA 738 (Younan), the Tribunal relevantly concluded (at [15]) that:
Section 1212 of the Act requires that the medical treatment for which the person went overseas is medical treatment of a kind that is not available to the person in Australia. While the dental work required by Mr Younan may well have been more expensive and/or may have been delayed had it been undertaken in Australia, there is no evidence that treatment of that nature was not available to him in Australia. Hence, the Tribunal finds that the medical treatment in Thailand does not meet the narrow definition of that term in s 1212 of the Act.
Furthermore, the Tribunal in Osmani and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605 (Osmani), concluded (at [35]) that:
Effectiveness of treatment is not a relevant consideration under the statute. Also, the fact that there were lengthy waiting periods for some facilities does not, in Mr Osmani’s circumstances, mean that those services were not available to him in Australia.
A letter in support from Ms Paul’s general practitioner, Dr Nipa Dutta, dated 9 May 2023, being after the relevant overseas travel, listed Ms Paul’s ‘multiple and complex chronic medical condition[s]’, including ‘[c]lass 1 obesity with features of metabolic syndrome’.[11] It also relevantly stated that:[12]
She recently went to India to seek further medical opinion regarding management of her complex medical conditions particularly for metabolic syndrome and weight gain issues. She was recommended Liraglutide by her endocrinologist in Canberra in 2022. Liraglutide is not available under PBS for her clinical condition in Australia. The private script cost of this medication is very high. There has been consistent shortage of supply of Liraglutide in Australia in the last 2 years. The medication was not accessible for her clinical condition even with private script, due to inadequate supply in Australia. As a result, she sought medical advice from overseas to access the medication to initiate treatment. She was commenced on Liraglutide injection by her consultant physician in India for metabolic syndrome and weight control. Now she has stated [sic] treatment with Liraglutide as advised by her endocrinologist. She reports lower cost of the medication compare [sic] to Australia and no shortage of supply in India.
Based on her history, she clearly benefited from seeking affordable medical advice and medications from overseas. I can only request for your kind consideration for continuing her entitled social benefits including while she was outside Australia.
[11] Ibid., page 51.
[12] Ibid.
Ms Paul and her husband told the Tribunal that they had enquired about the availability of the medication at a number of pharmacies in Canberra and were advised that it was in ‘short supply’ or only available to diabetics.[13] They also provided evidence of an online forum discussion, regarding the shortage of Liraglutide in Australia, said to have occurred in approximately September 2023, being after Ms Paul returned from the relevant overseas travel.[14] In this regard, Ms Paul contended that Liraglutide was only dispensed for people with diabetes and on ‘an authority script’, and relied on an undated online chat with a representative of a pharmacy stating that the medication was in ‘short supply’.[15] While the screenshots of that online exchange do not identify the date that it occurred, Ms Paul submitted that it was in April 2023, again being after she returned from overseas to Australia in January 2023.[16]
[13] Exhibits 2 and 6.
[14] Exhibit 6.
[15] Exhibit 2.
[16] Ibid.
The Tribunal finds that the treatment received by Ms Paul in India was not ‘eligible medical treatment’, because the Tribunal is not satisfied that the treatment was ‘not available’ to her in Australia. The opinion of the Agency’s Health Professional Advisory Unit (HPAU) dated 31 July 2023 stated that, although Liraglutide was recommended by a specialist for weight control, Ms Paul’s condition was not considered life threatening and, while it acknowledged that Liraglutide was in ‘short supply’ in Australia in late 2022, that situation had resolved by mid-2023.[17] Most relevantly, although the medication may have been in short supply or subject to shortages in Australia, there was no evidence that the treatment was ‘not available’ in Australia during the relevant period in December 2022 and January 2023, or that medical treatment ‘of a kind’ to that recommended was not available, that is, a similar drug for the same purpose or treatment.
[17] Exhibit 1, page 57.
A report published by the Therapeutic Goods Administration (TGA) regarding medicine shortages in Australia stated that, between the period 25 May 2023 to 25 June 2023, being after Ms Paul’s overseas travel, there was a shortage impact rating of ‘medium’ in respect of the relevant medication, Liraglutide.[18] However, the TGA did not record any other shortages for that medication, including in or around 16 December 2022 when Ms Paul’s ‘maximum portability period’ ended while she was overseas. That is, there was no reference to any supply shortage, or indeed unavailability, of the medication in late 2022 and into early 2023.
[18] Exhibit 7.
Moreover, the Guide provides that treatment does not necessarily satisfy the definition of ‘eligible medical treatment’ just because a doctor approves or recommends the treatment. There was, however, no medical evidence from before Ms Paul’s overseas travel, including from her endocrinologist or general practitioner in Australia, or any associated prescription that she had been provided for the particular medication in advance of that travel. There was also no independent evidence that, before she travelled overseas, Ms Paul sought further medical advice in relation to whether she could access alternative medications or therapies for the treatment of obesity, metabolic syndrome or insulin resistance in Australia due to the particular medication’s claimed unavailability in this country.
In addition, and for completeness, while Ms Paul contended that the medical treatment was required because her life was in danger if it was not received at that time, there was no corroborating evidence to that effect, including from any medical practitioners. In this regard, the HPAU noted that Ms Paul’s condition was ‘not considered life threatening’.[19] In accordance with the aforementioned Tribunal decisions in Younan and Osmani, delayed treatment or lengthy waiting periods in Australia do not mean that the particular treatment is ‘not available’ to the person in this country.
[19] Exhibit 1, page 57.
For the above reasons, the Tribunal finds that Ms Paul’s absence from Australia was not to seek ‘eligible medical treatment’. The Tribunal is not satisfied, as required under the Act, that the medical treatment she obtained in India was ‘not available’ to her in Australia.
What was Ms Paul’s ‘maximum portability period’?
Having regard to the above findings, the Tribunal is satisfied that Ms Paul’s DSP should have been suspended under the Administration Act at the end of her ‘maximum portability period’ of 28 days.
Ms Paul departed Australia on 18 November 2022 and she returned on 30 January 2023, a period of 73 days’ absence.[20]
[20] Ibid., pages 98-99.
There was no evidence of a determination having been made that Ms Paul’s ‘maximum portability period’ for DSP was unlimited pursuant to section 1218AAA of the Act. Therefore, in accordance with section 1217 of the Act, that ‘maximum portability period’ was a total of 28 days within 12 months.
Ms Paul told the Tribunal that she spent almost one month in Bangladesh after her treatment in India and before returning to Australia. There was no evidence that Ms Paul was ‘unable to return to Australia’ before she did on 30 January 2023, including due to that treatment, such that would indicate that her portability period should be extended under section 1218C of the Act.
In accordance with subsection 1217(4)(b)(ii) of the Act, Ms Paul’s ‘maximum portability period’ for DSP ended on 15 December 2022. Pursuant to subsection 1215(1)(b) of the Act, DSP was not payable to Ms Paul from 16 December 2022, until her return to Australia on 30 January 2023 when that payment was restored by the Agency.[21]
[21] Ibid., pages 43-45 and 98-99.
CONCLUSION
For the above reasons, Ms Paul’s application before the Tribunal is unsuccessful. The Tribunal has found that the correct or preferable decision was for Ms Paul’s DSP to be suspended on 16 December 2022.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...[SGD]...
Associate
Dated: 3 October 2024

Date(s) of hearing:

Date of last submissions:

20 September 2024

18 September 2024

Applicant’s representative: Mr Rajib Paul

Solicitor for Respondent: Ms Sahana Navaratnam, Services Australia