Ramsay and Secretary, Department of Education, Employment and Workplace Relations

[2010] AATA 278

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 278

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3164

GENERAL ADMINISTRATIVE DIVISION		)
Re		George Ramsay

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date of Written Reasons   20 April 2010

Date of Decision                 7 April 2010

Place  Sydney

Decision The Tribunal affirms the decision under review.

..................[sgd]............................

Senior Member

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance –  allowance cancelled when applicant went to New Zealand to see elderly mother – mother ill – whether allowance should have been cancelled – discretion - whether circumstances were acute family crisis – Tribunal not satisfied acute family crisis – no other grounds for exercise of discretion – decision under review affirmed

Social Security Act 1991

REASONS FOR DECISION

20 April 2010 Senior Member Jill Toohey           

1.      These written reasons reflect the transcript of the hearing with amendments for clarity of expression.  The reasons for the decision have not been changed from those delivered orally at the conclusion of the hearing.

2.      Mr Ramsey seeks review of a decision made by the Secretary of the Department of Education, Employment and Workplace Relations (the Secretary), and affirmed by the Social Security Appeals Tribunal (SSAT) on 15 June 2009, to refuse to pay him Newstart Allowance from 14 December 2008 to 5 February 2009 while he was in New Zealand. 

3.      Mr Ramsay says he went to New Zealand on account of an acute family crisis because his mother was critically ill and not expected to live, and wanted to see her children before she died.  He says he had planned to return to Australia around 21 to 24 December 2008 but was unable to do so because his passport was lost or stolen and he had to apply for another which he did not get until 2 February 2009. 

4.      The evidence that Mr Ramsay has put before the Tribunal in addition to his own evidence this morning is a letter from his sister; letters from Dr Luke Kim, his mother’s general practitioner; a letter from Middlemore Hospital, Auckland; and a letter from Samesi James, a traditional medical therapist.

5.      The Secretary accepts that Mr Ramsay’s mother is 88 years old, and that her medical records show she has suffered serious illnesses and been admitted to hospital several times, including in the year before Mr Ramsay went to see her. 

6.      The Secretary accepts that Mr Ramsay went to New Zealand to encourage the family to pray for his mother and to encourage her that everything would be all right, and I accept that evidence as well.  The Secretary also accepts that Mrs Ramsay was admitted to hospital twice while Mr Ramsay was there.  Evidence from his sister and from Dr Kim indicates that Mrs Ramsay was very ill indeed and was possibly not even expected to live, at least on one of those occasions.

7.      I have to apply the Social Security Act1991 (the Act) as it applies to Mr Ramsay’s application.  Under the Act, Newstart Allowance can continue to be paid to a person for up to 13 weeks for three reasons.  One reason is if a person has gone overseas to seek eligible medical treatment.  Mr Ramsay does not contend that was applicable here, and I am satisfied it was not.  Nor was there a humanitarian purpose, which is one of the other reasons for which Newstart Allowance can be paid while a person is overseas. 

8.      The provision that Mr Ramsay relies on is that which enables Newstart Allowance to be paid where a person goes overseas to attend to an “acute family crisis”: s 1217(1). 

9.      The legislation defines what “acute family crisis” means at s 1218C of the Act.  The relevant meanings are:

(a)  for the purpose of visiting a family member who is critically ill;

(b)  for the purpose of visiting a family member who is hospitalised with serious illness.

10.     I have considered whether is there any other provision in the legislation that might be relevant, for instance if are there any special circumstances provisions that might enable the discretion to be exercised, but there are not.  Mr Ramsay has to meet one of the above two criteria. 

11.     Mr Ramsay says he told Centrelink before he went that he was going, or likely to go, because his mother was seriously ill.  There is no record of this in the Centrelink file, even though Mr Ramsay had conversations on 2 December 2009 and 10 December 2010 about portability of his son’s benefit. I consider that it is more probable than not that Centrelink would have recorded something about this conversation if it actually occurred.

12.     I accept that Mr Ramsay’s sister had told him several times during the year that their mother was unwell and had asked him to come to see her.  Just because he forgot or overlooked to tell Centrelink would not affect whether he can be paid Newstart Allowance while he is away, and in fact, it could be consistent with a family emergency that somebody leaves without telling Centrelink about the crisis. 

13.     However, looking at all the evidence, I am not satisfied that there was an acute family crisis in this case as that term is defined in the legislation.  The Oxford Australian Dictionary defines “critically” as meaning, “of or at a crisis” and “crisis” as “a decisive moment; a time of danger or great difficulty; the turning point, especially of a disease.”  In the Macquarie Dictionary, “crisis” is “the point in the course of a disease at which a decisive change occurs, leading either to recovery or death,” and the other meanings are “a turning point; a decisive or vitally important stage in the course of any thing.”

14.     It is important to take a broad approach when interpreting beneficial legislation such as the Act, so I have to look to a broad interpretation that can benefit Mr Ramsay.  The difficulty is that, although I accept completely that Mrs Ramsay has had a serious illness, and that she did at the relevant time, I am not satisfied that she was critically ill.  There needs to be something more pressing, or more decisive, or more a sense that an illness has really reached a time of change.  There is no question that Mrs Ramsay had a serious illness at the time and, indeed, she was admitted to hospital twice while Mr Ramsay was there, and I accept completely that, when she was admitted around 24 December 2008, the family had reason to think that she would not survive. 

15.     Mr Ramsay has said that he was told, or his sister was told, by the doctors that his mother was dying and that was the reason that he went to visit her; he was at least told that she was not expected to last more than a week.If that was so, I would accept that Mrs Ramsay was critically ill as defined by the Act, but I am not satisfied on the evidence that is what the doctors said.  If it was so, I believe that it would appear in some form in one of Dr Kim’s reports, or in something from one of the family, especially from Mr Ramsay’s sister, but the fact that no one refers to Mrs Ramsay’s illness in those terms or anything like it indicates to me that, although she was seriously ill most of the time, she was not critically ill when Mr Ramsay when to visit her. 

16.     Many people have been through the experience of elderly parents and the worry whenever they become ill, and obviously, when somebody is as elderly as Mr Ramsey’s mother, anything can be almost their last illness, but that is different from saying that she was critically ill at the relevant time.

17.     Dr Kim’s letter, in fact, says that Mrs Ramsay “came down with illness” while Mr Ramsay was there and had to be hospitalised.  I accept, as I said, that she became critically ill around Christmas, but that was not the purpose of the visit at the time that Mr Ramsay went to visit her. 

18.     I have also considered whether Mrs Ramsay was hospitalised just before Mr Ramsay went to visit her because he told the SSAT that she had been hospitalised immediately before his visit.  I am satisfied that a broad interpretation of going to visit somebody who is “hospitalised” would allow for a situation where somebody had been hospitalised just immediately before a visit but was out of hospital by the time they arrived, but I am not satisfied that happened here.  The report from Middlemore Hospital sets out the dates of her admissions earlier in the year, and they seem to be for two or three days each.  I do not accept that the hospital would omit an admission of around two weeks.

19.     There is no evidence that suggests that Mrs Ramsay was actually at another hospital, as Mr Ramsey has suggested, and I do not accept that Dr Kim would have overlooked to include that she had been hospitalised for that period.  As I said, the fact that she was hospitalised during Mr Ramsay’s visit does not help him, because that must be the purpose of the visit. 

20.     I do not accept the Secretary’s contention that, because Mr Ramsay did not drop everything immediately and go to visit his mother, and that he thought about completing his course and gave some priority to that, his mother could not have been critically ill.  People often have to make decisions that involve balancing competing priorities, and so I do not give any weight to this factor.

21.     In conclusion, the Act sets out clearly when Newstart Allowance can be paid to a person overseas.  I accept Mrs Ramsay has had serious illnesses over a long time.  I accept Mr Ramsay went to see her to be with her and I accept that he thought it possible he would not see her again.  However, the language of the legislation is strict, and I am not satisfied on the evidence before me that Mr Ramsay went to visit his mother because she was critically ill at the time or was hospitalised with a serious illness.  

22.     It follows that Mr Ramsay did not go overseas for an acute family crisis as that term is defined in the Act.  Therefore, I must reach the same decision as Centrelink and the SSAT and affirm the decision not to pay the Newstart Allowance.  I am sorry to have to reach that decision, Mr Ramsay, because it must have been a difficult time for you but I must apply the legislation and it seems to me on the evidence that there is really only one conclusion that I can reach. 

23.     The Tribunal affirms the decision under review.

I certify that the 23 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         .........[sgd]...............................................................
           Diana Weston  Associate

Date of Hearing  7 April 2010

Date of Decision  7 April 2010
Date of Written Reasons  20 April 2010

ApplicantSelf-represented

Representative for the Respondent:               Ms Glenda Heggen, Centrelink Advocacy Branch