Paul and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Ms Paul to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) regarding the suspension of her Disability Support Pension (DSP). Ms Paul had departed Australia on 18 November 2022, and her DSP was suspended by Services Australia on 16 December 2022, as she had exceeded the maximum 28-day portability period. Following a review by an Authorised Review Officer (ARO) and a subsequent review by the AAT, Ms Paul’s DSP remained suspended because the ARO was not satisfied that her overseas travel was for the purpose of seeking "eligible medical treatment". Ms Paul then applied to the Tribunal for a review of the AAT's decision.

The primary legal issue before the Tribunal was whether Ms Paul was entitled to continue receiving her DSP after the expiry of the 28-day portability period, by virtue of undertaking "eligible medical treatment" overseas. This required the Tribunal to interpret the meaning of "eligible medical treatment" as defined by the Social Security Act 1991 (the Act) and relevant case law, and to determine if the treatment Ms Paul received in India met this definition. The Tribunal also considered the provisions of section 1215 of the Act, which governs the payment of social security benefits during periods of absence from Australia, and the policy guidance contained within the Social Security Guide.

The Tribunal reasoned that the determination of whether medical treatment is a kind not available in Australia must be made on an objective basis, rather than on the patient's perception. Citing previous decisions, the Tribunal emphasised that the treatment must be of a kind that is genuinely unavailable in Australia, and not merely more expensive or subject to a longer waiting list. The Tribunal found that Ms Paul had not provided sufficient evidence to demonstrate that the medical treatment she sought in India was of a kind not available to her in Australia. Consequently, the Tribunal concluded that the suspension of her DSP from 16 December 2022 was the correct and preferable decision.

The Tribunal affirmed the decision under review, finding that Ms Paul's application was unsuccessful.