Perera and Secretary, Department of Family and Community Services

[2004] AATA 139

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No Q2003/635, Q03/838

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WILFRED AND DONA PERERA

Applicants

And

SECRETARY DEPARTMENT

OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date13 February 2004

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

..................(Sgd).......................

MJ Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – special benefit – portability – cancellation while applicants overseas

Social Security Act 1991
Social Security (Administration) Act 1999 s 80

Re Secretary Department of Social Security and Howse (AAT 8870, 26 July 1993)

REASONS FOR DECISION

13 February 2004 Ms MJ Carstairs, Member

1.      These are applications by Wilfred Perera and Dona Perera (the applicants) for review of decisions affirming decisions of a Centrelink delegate of the respondent dated 18 April 2001 to cancel the applicants’ special benefits being paid to them from late 2000 while they were in Sri Lanka.

2.      The applicants remain in Sri Lanka living with their daughter.  Mr Perera represents his wife on her application, as she is very disabled.  The applicants and respondent agreed to the Tribunal conducting the review on the papers.

3. The Tribunal had the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975, numbered T1-T35.  Mr Perera sent additional letters to the Tribunal.  Ms J Hamilton, who represented the respondent, submitted a Statement of Facts and Contentions on 10 November 2003.

background

4.      Mr Perera is aged eighty and Mrs Perera eighty-one years.  They each were receiving special benefit payments in 2000 when they decided to leave for Sri Lanka. 

5.      Their special benefits were paid to them in Sri Lanka until the decision was made in April 2001 to cancel the payments.    The applicants did not seek review of the cancellation decisions until October 2002 (T19).   An authorised review officer affirmed the decision cancelling the special benefits, as did the Social Security Appeals Tribunal (SSAT).  Mr Perera then sought review by this Tribunal on 24 July 2003 and time was extended to Mrs Perera in a Tribunal Direction dated 9 October 2003.

6.      The issue for the Tribunal is whether the decisions made in April 2001 to cancel the applicants’ special benefit payments were the correct decisions.

evidence

7.      The “T” Documents included two computer records dated 26 October 2000 stating that a Centrelink officer considered that special benefit could be paid to both of the applicants while they were overseas.   The notes record that this was because Mr Perera was leaving for “humanitarian reasons” (T5) and Mrs Perera was seeking “medical treatment … not available in Australia” (T7).  Each noted that the payment could continue overseas until 28 April 2001. The computer record also noted that Mr Perera asked for mail to be sent to their Australian address.

8.      The documents also included letters to each of the applicants dated  26 October 2000 (T8 and T10) addressed to 1/5 Kitchener Street, Tugun, Queensland stating that special benefit could be paid for a maximum of 26 weeks and if the overseas stay exceeded this, special benefit would be cancelled.

9.      The documents also included a number of letters (T11-T18) to each of the applicants advising the rate of special benefit from time to time.  These were all addressed to 10 Castle Court, Tugun, Queensland.  Letters dated 18 April 2001 (T17 and T18), also addressed to 10 Castle Court Tugun, notified each applicant that their special benefit had been cancelled because they were “no longer eligible”.   

10.     In a letter dated 8 October 2002 (T19) Mr Perera wrote to Centrelink describing their desperate financial circumstances in Sri Lanka.  He has written numerous letters since (including letters dated 4, 15, and 23 September 2003, 3 October 2003, 5, 17 and 26 November 2003, and 23 December 2003) referring to their reasons for departing Australia and remaining in Sri Lanka.  Mr Perera has said in these letters that Mrs Perera suffers with dementia, and that a relative had suggested they seek the services of a “good native doctor” in Sri Lanka.  Mr Perera has referred in his letters to his twenty year working history in Australia, and asked that special consideration be given to their destitute circumstances.  

11.     The letter dated 23 December 2003 most comprehensively summarises his issues.  These include the following:

§  Mr Perera said he went to Centrelink on 24 October 2000 and gave a detailed account of how Mrs Perera needed to return for “native treatment in Sri Lanka as this treatment not here in Australia”.

§  When they had returned to Australia (from his earlier letters, this occurred 10 April 2000), Mr Perera’s wife became ill during the plane flight, and was taken by ambulance to Royal Brisbane Hospital on landing.   Mrs Perera then spent that day at the hospital, and was discharged to Mr Perera’s care for bedrest, and she was attended with daily home nursing visits for three weeks.  In an earlier letter Mr Perera said that when they came in April 2000, they brought with them six-month’s dosage of ayurvedic medicines from Sri Lanka.  He said they needed to return to Sri Lanka to obtain additional ayurvedic medicines once these were used, as these treatments were not available in Australia.

§  Mr Perera said Centrelink did not undertake the necessary investigations prior to their departure.  He said that his wife’s illness was life threatening, it was an acute family crisis, and there was a humanitarian need for the travel.

§  Mr Perera asked for the condition of his eyes to be taken into account.  He said he was on the waiting list for eye surgery in Australia for 14 months but only received the letter approving the surgery after he left Australia.  He then had to undergo urgent eye surgery in Sri Lanka at great cost for which he borrowed from relatives.  (In a report dated 3 November 2003,  Dr C Foneska, consultant ophthalmologist, Eye Hospital, Colombo, stated that Mr Perera has bilateral open angle glaucoma).

§  Mr Perera said they were unable to return to Australia in January 2001 as intended, due to his wife’s dementia not improving.  He said that the treatments in Sri Lanka had not assisted her; she is now paralysed on both sides of her body and is confined to bed, unable to walk or travel.

§  Mr Perera said that he and his wife are in need of financial assistance to pay for medications and living. 

§  He said that when he went to Centrelink in October 2000 he was told that the special benefit was portable and “he would be paid right through”.  In an earlier letter (dated 26 November 2003) Mr Perera had referred to being told that “special benefit would be paid until your return”. 

§  He said he did not receive the letter dated 26 October 2000 (T6).  Mr Perera stated that he has a copy of a Centrelink letter dated 24 October 2000 approving his overseas departure but said he was unable to produce a photocopy of it as it is dirty and torn.  He said that the respondent now is concealing the existence of the letter dated 24 October 2000.   Mr Perera said that when he attended Centrelink on 24 October 2000, the Centrelink computers were not operating.

§  Mr Perera stated that he is on the electoral roll in Australia, votes in Australian but not in Sri Lanka, has his goods stored at Tugun, and holds a Queensland seniors card.  He referred to his long working life in Australia.

12.     In a written report dated 28 November 2003, Dr B Chandra Kulapali, stated that Mrs Perera had suffered a stroke and been under his care and treatment since  1 November 2000 and that treatment was continuing.

consideration of the issues

13.     The decision under review is one to cancel special benefit being paid to the applicants overseas. The legislation that provides for the cancellation or suspension of a social security payment is to be found, as here relevant, in section 80 of the Social Security Administration Act (1999) (the Administration Act).  That section provides as follows:

“80.(1)  If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)       who is not, or was not, qualified for the payment; or

(b)       to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended”.

14.     Centrelink made decisions to cancel each of the applicant’s special benefits, and advised the applicants of this by letters dated 18 April 2001 (T17 and T18).  The letters stated that the benefits were cancelled because “you are no longer eligible”.  None of the T-documents at or about the date of the decision to cancel explained the reasoning leading to the conclusion that the applicants were “not eligible” from early April, a date in advance of 28 April 2001, which they had been told was the date they could be paid to while they remained overseas.

15. Section 80 of the Administration Act refers to a “social security payment”. This term is defined in section 23 of the Social Security Act 1991 (the Act) to include “special benefit”. The legislative test in section 80 of the Administration Act, prior to a cancellation or suspension, requires the decision maker to consider whether the special benefit is being or has been paid to a person who is not, or was not qualified, or to whom it is not, or was not, payable.. The relevant time is the date of the decision to cancel. However, the use of past and present tense in the section makes it clear that earlier circumstances may be taken into account in making a decision to cancel.

16.     The authorised review officer and the SSAT looked at the decisions made in October 2000, under section 1217 of the Act, allowing special benefit to be portable during a temporary (26 week) absence overseas for any of the following purposes:

§  To seek “eligible medical treatment” further defined as “medical treatment of a kind that is not available to the person in Australia”

§  To attend to an “acute family crisis”, which requires the decision maker to be satisfied that the absence is for the purpose for visiting a family member who is critically ill, hospitalised with a serious illness, or for the death of a family member, or for a life threatening situation other than illness, facing a family member.

§  For “a humanitarian purpose”, defined in section 1212B of the Act as those involving custody or criminal proceedings or adoption of a child.

17.     The original decision-maker who dealt with Mr and Mrs Perera when they came to Centrelink prior to their departure must have considered their circumstances met these legislative tests.  The available documents bear this out, and it is of no significance that Mr Perera says he has a letter dated 24 October 2000, which approved the travel.   It is clear from the documents which the Tribunal had, including computer records and letters to the applicants, that the approval was given for Mrs Perera on the basis that she met the requirement that her absence was to seek treatment of a kind not available in Australia.  There appears to have been no medical evidence produced by the applicants that would assist the decision-maker in forming the conclusion that he or she did.  Centrelink’s policy manual for the guidance of decision making sets out that eligible medical treatments do not include treatment which are not mainstream, and requires usually that medical evidence will be provided.  The Tribunal in Re Secretary Department of Social Security and Howse (AAT 8870, 26 July 1993) referred to the importance of an applicant producing acceptable medical evidence with regard to whether medical treatment was available in Australia.  In Howse the Tribunal said that the question must be decided on an objective basis and not on the perception of the patient.

18.     The Tribunal was not satisfied that Mrs Perera’s absence overseas met the statutory criteria at the time of departure. The only medical evidence now available is that Mrs Perera has suffered a stroke, but it is not clear from the report when she suffered it.  Mr Perera refers to his wife having dementia prior to her departure in 2000.  On Mr Perera’s evidence she has deteriorated in Sri Lanka and he has commented on her increasing paralysis.   Whether Mrs Perera’s condition is a stroke or dementia or a combination of both conditions, the Tribunal was not satisfied that treatment was not available to her in Australia.   There is simply no medical evidence on this.   Mr Perera’s perception that they needed to return to restock ayuverdic medicines and seek treatment from a native doctor is not sufficient evidence.

19.     As Mrs Perera does not satisfy the legislative requirement of an absence to seek “eligible medical treatment”, Mr Perera cannot rely on the need to accompany her during that treatment as a basis for continuing payment of his special benefit.  Nor can Mr Perera claim the exemption for eligible medical treatment in regard to his eye surgery, as his evidence was that medical treatment was available to him in Australia after a waiting period.  The reasons for his absence overseas do not fit within any of the matters defined under section 1212B of the Act as “humanitarian purposes” or under section 1212A of the Act defining an “acute family crisis”.

20. As neither applicant’s circumstances came within the legislative provisions allowing for portability of special benefit, neither of them should have been paid while they were overseas. Through no fault of theirs, special benefits were paid to them, for about 23 of the 26 weeks that it would payable to them had they been able to meet the provisions allowing for portability. As the Tribunal was satisfied that the payment was not payable to them, section 80 of the Administration Act allows for the payment to be cancelled or suspended.  The Tribunal finds that the correct decision was to cancel the payment, given that they had already received over five months of payments to which they were not entitled, and had exceeded the date of their proposed absence overseas.

21.     Mr Perera has stated that circumstances beyond his and his wife’s control now keep them in Sri Lanka.  Section 1218C(1) of the Act allows a portability period to be extended for reasons that include a serious illness of the person or a family member.  However, the Tribunal was satisfied that the applicants’ special benefits were never portable, and therefore there was no basis to consider extending portability under section 1218C of the Act.

22.     The only decision under review by the Tribunal was the decision to cancel the applicants’ special benefits.  However, Mr Perera’s letters make numerous references to his status as a “resident” of Australia.   It may be that in addition to seeking review of the cancellations, he is also enquiring about current entitlement to special benefit.  It would be appropriate for the respondent to treat his correspondence as an enquiry in regard to claiming benefits, and if necessary forwarding claim forms.

decision

23.     The decisions under review are affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         Kirsten Donnelly
  Associate

The matter was heard on the papers         
Date of Decision  13 February 2004