Ray and Secretary, Department of Social Services (Social services second review)
[2016] AATA 187
•30 March 2016
Ray and Secretary, Department of Social Services (Social services second review) [2016] AATA 187 (30 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/1891
Re
Paul Ray
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 30 March 2016 Place Melbourne The Tribunal affirms the decision under review concerning Mr Ray’s ineligibility for an extension of his portability period in March 2012.
The Tribunal does not have jurisdiction to consider the rejection on medical grounds of Mr Ray’s claim for DSP lodged on 25 June 2012.
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Regina Perton, Member
SOCIAL SECURITY – disability support pension – whether grounds to extend portability period – decision affirmed
Social Security Act 1991 ss 23(14), 1217, 1218AA, 1218AB, 1218, 1218C
Frankos and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AAT 297 (3 April 2006)
Ray and Secretary, Department of Social Services [2014] AATA 227 (16 April 2014)
REASONS FOR DECISION
Regina Perton, Member
30 March 2016
Mr Paul Ray was the recipient of a disability support pension (DSP) from March 2003 until March 2012. Mr Ray has frequently visited Bali since the late 1970s. After the grant of DSP he spent much of his time in Bali as the climate there was beneficial to his health. In 2004 he met a local woman whom he later married. His now estranged wife bore him a son and Mr Ray informally adopted his wife’s then teenage daughter. Mr Ray returned to Australia regularly because of his family here and because of the requirements then in place for ongoing qualification for DSP for those spending considerable time overseas.
The requirements for ongoing qualification for DSP have tightened over the years, particularly for people like Mr Ray who spent much of his time in a country other than Australia. The length of his absence from Australia and whether he was still an Australian resident have been issues Mr Ray has faced in relation to his ongoing DSP entitlement.
In March 2012 Centrelink decided that Mr Ray was no longer a resident of Australia and cancelled his DSP payment. Mr Ray had most recently departed Australia on 9 December 2011 and was still overseas when the decision to cancel his DSP was made.
Mr Ray returned to Australia on 6 June 2012 and challenged the decision to cancel his DSP on the basis that he was no longer an Australian resident. He also lodged a fresh application for DSP based on Centrelink’s advice that he should do so. His enquiries made of Centrelink in June 2012 have been treated both as a new application and a request for review of the cancellation of his DSP.
On 16 April 2014 this Tribunal determined that Mr Ray met residence requirements at the time of cancellation of DSP in March 2012 and remitted the matter to the respondent to consider any other outstanding issues (Ray and Secretary, Department of Social Services 2013/0085, [2014] AATA 227).
On 21 November 2014 Centrelink made a decision that Mr Ray was not entitled to ongoing DSP payments as at the date of cancellation because his portability period had ended on 9 March 2012 and could not be extended and that he was therefore not eligible for continuation of DSP payments. An authorised review officer (ARO) of Centrelink affirmed the decision on 6 January 2015. On 18 March 2015, the Social Security Appeals Tribunal (SSAT) affirmed the decision.
Mr Ray lodged an application for review with this Tribunal on 22 April 2015.
RELEVANT LEGISLATION
The provisions concerning portability of DSP are set out in the Social Security Act 1991 (the Act). At the time Mr Ray left Australia, the maximum portability was 13 weeks (s 1217 of the Act).
There were a number of prescribed situations where a person may continue to receive DSP beyond the maximum portability period. They were spelled out in s 1218 and subsequent sections.
1218AA Unlimited portability period for disability support pension
(1) The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person’s absence from Australia is or will be permanent; and
(e) the purpose of the person’s absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person’s country of origin.
(2) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(3) If the Secretary revokes the determination, this Part has effect after the first time at which one of the qualifying circumstances does not exist as if the person’s maximum portability period for the pension were 13 weeks starting at that time.
1218AB Extended portability period for disability support pension
(1) The Secretary may, by written determination, extend the person’s portability period for disability support pension if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B));
(b) the person is receiving disability support pension;
(c) the person is wholly or substantially dependent on a family member of the person (see subsection 23(14));
(d) the Secretary is satisfied that the person will be living with the family member of the person throughout the period of absence;
(e) the family member of the person is engaged in employment in Australia for an employer immediately before the start of the period of absence;
(f) the Secretary is satisfied that the family member of the person will be engaged in employment outside Australia for that employer throughout the period of absence.
(2) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for disability support pension, for the purposes of this Part, is the extended period.
(3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
1218 Exception—full time students outside Australia for purposes of Australian course
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1218C Extension of person’s portability period—general
(1) The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a) a serious accident involving the person or a family member of the person;
(b) a serious illness of the person or a family member of the person;
(c) the hospitalisation of the person or a family member of the person;
(d) the death of a family member of the person;
(e) the person’s involvement in custody proceedings in the country in which the person is located;
(f) a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g) robbery or serious crime committed against the person or a family member of the person;
(h) a natural disaster in the country in which the person is located;
(i) political or social unrest in the country in which the person is located;
(j) industrial action in the country in which the person is located;
(k) a war in the country in which the person is located.
(2) The Secretary must not extend the person’s portability period under subsection (1) unless:
(a) the event occurred or began during the period of absence; and
(b) if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
(3) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.
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Section 23(14) of the Act provides a definition of family member in relation to a DSP recipient:
(14) For the purposes of this Act other than Part 2.11 and the Youth Allowance Rate Calculator in section 1067G, each of the following is a family member in relation to a person (the relevant person):
(a) the partner or a parent of the relevant person;
(b) a sister, brother or child of the relevant person;
(c) any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person’s relations described in paragraph (a) or (b).
WAS MR RAY ELIGIBLE FOR EXTENDED PORTABILITY PRIOR TO 8 MARCH 2012?
There is no evidence to suggest that Mr Ray met the criteria, nor did he claim to do so, in relation to sections 1218AA, 1218AB or 1218 of the Act. Mr Ray submitted that he may have qualified under one of the provisions of s 1218C.
He has described health issues he faced, as well as those of his estranged wife and daughter. He also cited the impact of floods in Bali before the time of cancellation of his DSP.
Mr Ray advised that in February 2012 he suffered symptoms from food poisoning and increased urinating. However, he conceded that he was not hospitalised nor did he seek medical treatment as a result of the symptoms. There is no evidence to confirm the state of his health during his stay in Bali between December 2011 and March 2012. He has now been diagnosed with prostate cancer but that was not the situation prior to, or during, his time in Bali.
Mr Ray stated that his wife suffered abrasions as a result of a motorcycle accident. He could not recall the exact date on which that happened but believed it was during the period under consideration. Mr Ray said that his wife had not seen a doctor, nor had she been hospitalised. He said that he wanted to make sure that she had recovered before he returned to Australia.
In his evidence to the Tribunal in relation to his previous application (2013/0085), Mr Ray told the Tribunal that he had separated from his wife at the time of cancellation of DSP. It is therefore more likely than not that Mr Ray’s wife was not a family member as defined in the Act by the end of the portability period. Even if she was still a family member, there is no evidence that Mr Ray’s wife’s injury could be described as serious given no medical attention was sought. Therefore the Tribunal does not need to make a finding about whether she was a family member at the relevant time.
Mr Ray stated that his informally adopted daughter scalded her hand badly during a visit to his home. The respondent is prepared to accept that she would meet the definition of family member as is the Tribunal. Mr Ray stated that it was his belief that this had happened in February 2012. Mr Ray said that he provided first aid and that his daughter did not attend a doctor or hospital. The Tribunal accepts that it was a bad burn and that Mr Ray was dealing with the injury himself, probably for financial reasons. However the Tribunal is of the view that if the injury was to be categorised as serious, it would need to involve more than just treatment at home by Mr Ray, despite his ability to provide good care. Given that no professional medical assistance was sought and there is no independent evidence of the timing of the event, the Tribunal is not satisfied that the injury would be described as serious nor that it necessarily occurred in the month specified by Mr Ray.
The Tribunal notes that Mr Ray is an interesting person with whom to converse and he has a great array of fascinating stories about his life. However, his memory of dates when things occurred is not as reliable as his recall of the actual events. There is no evidence from anyone or anywhere else that the incidents involving Mr Ray’s wife and daughter actually occurred during the relevant period. This has led the Tribunal to conclude that whilst it accepts that the injuries that Mr Ray has described did take place, the Tribunal is not satisfied that they occurred during the period relevant to this review.
The Tribunal therefore finds that Mr Ray does not satisfy the requirements of s 1218C(1)(a) of the Act.
Mr Ray states that the 2011-2012 monsoon season was particularly wet and stormy and that there was flooding in Bali. He said that he was unable to contact his wife to confirm that she and the children were fine. Mr Ray said he failed to return to Australia in time as he was hoping to find them and be reassured that all was well.
The respondent has cited several Tribunal decisions as providing guidance in interpreting provisions concerning portability periods. They include Frankos and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AAT 297 (3 April 2006) in which it was stated:
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19. The applicant asserts that a very bad winter was another reason that she was unable to return to Australia between December 2004 and February 2005, and she asks the Tribunal to consider whether the "natural disaster" provision can apply in her case.
20. Can bad weather be termed a natural disaster? A natural disaster is an event such as a cyclone, flood, fire, famine, volcanic eruption or tsunami. There is no definition of natural disaster in the Act
21. The term "natural disaster" must be given its ordinary meaning. It is an event of nature that has disastrous consequences for a community. There is no evidence whatsoever that the bad weather in Greece had disastrous consequences for the community or part of the community. The applicant asserts that some houses lost their roofs, but that is certainly not sufficient to turn a storm into a "natural disaster". The tsunami occurred in Asia and had no direct effect on the applicant.
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The respondent submits that Mr Ray has failed to produce evidence that shows that there was a natural disaster in Bali in early 2012. The Tribunal has been unable to find any evidence when undertaking some independent research of its own volition. The Tribunal is not satisfied that Mr Ray was unable to return to Australia within the 13 week portability period because of a natural disaster. He therefore fails to meet s 1218C(1)(h) of the Act.
Mr Ray does not appear to meet any of the other alternative provisions in s 1218C of the Act, nor does he claim to do so.
The Tribunal therefore determines that Mr Ray does not meet any of the possible criteria for extension of his portability period following the suspension of payments in March 2012 and ultimate cancellation of his DSP.
The Tribunal affirms the decision under review concerning the portability period.
IS THE TRIBUNAL ABLE TO REVIEW THE DECISION MADE REGARDING A FRESH CLAIM FOR DSP MADE IN JUNE 2012?
Mr Ray made a new claim for DSP on 25 June 2012. The claim was initially rejected by Centrelink on 9 July 2012 on the basis that Mr Ray did not meet residential qualifications at the time of claim. As discussed, this Tribunal in April 2014 determined that Mr Ray could be considered an Australian resident as at March 2012 but that was in relation to the cancellation of his DSP on that basis. The Tribunal remitted the matter for consideration of outstanding issues which initially led to the decision about the portability period which the Tribunal has reviewed in the first part of the claim.
Mr Pat Carson, who was assisting Mr Ray with his claim but not representing him, told the Tribunal that it had taken a lot of effort, requests to Centrelink and a considerable delay for Mr Ray to be advised that he had also failed to meet the criteria for acceptance of his medical conditions for DSP. Mr Carson submitted that the Tribunal should deal with the rejection of the DSP claim made in June 2012.
The Tribunal was provided with several reports from health professionals concerning Mr Ray’s health issues. Unfortunately, because of the confusion and delays in this case that were outside Mr Ray’s control, those reports are outside the 13 week period following lodgement of the claim.
In a report dated 29 November 2012 to Mr Ray’s general practitioner, Joanna Young, psychologist, comments that Mr Ray’s depressive and anxiety symptoms had become more severe in the previous month. She stated:
Paul is stressed and depressed, but demonstrates resilience and a philosophical attitude. He is using his support network of friends well. He has found counselling useful. Treatment has included some management strategies for anxiety but is mainly supportive counselling and motivational strategies. I would appreciate your approval for the next four sessions under the MHTP.
Ms Young also provided a report dated 7 December 2012 concerning Mr Ray’s condition stating that Mr Ray had been referred to her by his general practitioner in September 2012 following a diagnosis of major depressive disorder. A later report from Ms Young on 22 June 2014 expressed her concern about his deteriorating symptoms.
Medical certificates provided to Centrelink in June 2014 and September 2014 from general practitioners state that in their opinions, Mr Ray is unfit to work for the following three months. His conditions included pain and numbness all limbs globally associated with cervical disease with an onset in May 2010, pain in his left shoulder with an onset of January 2014 and major depression with a date of onset in 2009.
There is a report from the urology unit at The Alfred Hospital dated 20 October 2014 in relation to prostate cancer. He was said to have a low-volume, low-grade prostate cancer which would be put under active surveillance. He was to be tested again some six months later.
There is no report before the Tribunal as to Mr Ray’s medical condition as at the date of claim for the following 13 weeks.
Ms Bramley, representing the respondent, submitted that the Tribunal did not have jurisdiction to deal with the rejection of the claim lodged on 25 June 2012. That decision has not been through the review processes required before the Tribunal can deal with the matter.
The Tribunal has looked at the documentation before it and agrees with Ms Bramley that it does not have jurisdiction to deal with the rejection of the June 2012 DSP claim.
The Tribunal is therefore unable to determine whether Mr Ray should have been successful on medical grounds in relation to his 25 June 2012 DSP claim.
DECISIONS
The Tribunal affirms the decision under review concerning Mr Ray’s ineligibility for an extension of his portability period in March 2012.
The Tribunal does not have jurisdiction to consider the rejection on medical grounds of Mr Ray’s claim for DSP lodged on 25 June 2012.
38.
39. I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member
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Associate
Dated 30 March 2016
Date of hearing 11 November 2015 Applicant In Person Advocate for the Respondent Ms Ailsa Bramley Solicitors for the Respondent Department of Human Services
Key Legal Topics
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Administrative Law
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Statutory Interpretation
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Appeal
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Judicial Review
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Procedural Fairness
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Jurisdiction
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