Re Krouskos and Secretary, Department of Employment and Workplace Relations
[2006] AATA 989
•21 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 989
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/86
GENERAL ADMINISTRATIVE DIVISION ) Re JORJIANA KROUSKOS Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date 21 November 2006
Place Hobart
Decision The decision under review is affirmed.
..............................................
Senior Member
CATCHWORDS
Social Security - Disability Support Pension (DSP) - resident of Greece - no international agreement – portability period – whether any intention to return to Australia within the 13 week portability period - decision under review affirmed
Social Security Act 1991
The Guide to the Social Security Law
Drake (No 2) (1979) 2 ALD 60
Young and Secretary, Department of Family and Community Services [2004] AATA 392
REASONS FOR DECISION
21 November 2006 Ms A F Cunningham (Senior Member) 1. Jorjiana Krouskos has sought the review of a decision made by a Centrelink officer on 14 January 2005 to cancel her disability support pension with effect from 29 October 2004.
2. Ms Krouskos resides in Greece and was unable to attend the hearing in person. The hearing was conducted by way of telephone link.
3. Ms Krouskos had been in receipt of a disability support pension since 12 June 2001 due to a psychological/psychiatric condition. Ms Krouskos departed Australia on 30 July 2004. On 29 October 2004 a Centrelink officer suspended her disability support pension (DSP) because she had been absent from Australia for 13 weeks. The decision to cancel Ms Krouskos’ DSP was made on 14 January 2005 and affirmed on 7 March 2005.
4. Ms Krouskos has appealed the decision to cancel her DSP on the basis that she was unable to return to Australia prior to 29 October 2004 because of the ill-health of her mother. The issue for the Tribunal to determine is the length of time that DSP was payable to Ms Krouskos following her departure from Australia on 30 July 2004.
5. Eligibility for DSP is assessed pursuant to the relevant provisions of the Social Security Act 1991 (the Act). There is no international agreement in place between Greece and Australia meaning that the applicant’s portability period is to be determined under the Act.
6. Following amendments to the Act which came into effect on 1 July 2004, the maximum portability period is 13 weeks having been reduced from 26 weeks (s1217(1)).
7. The provisions of s1218AA of the Act provide for the payment of DSP for an unlimited period when certain criteria are met. This section requires that each of the listed criteria in s1218AA(1) must be met including the criterion that a person is terminally ill. There was no evidence before the Tribunal that Ms Krouskos is terminally ill. It was her evidence that she suffers from substance dependence and depression. Accordingly there is no basis upon which Ms Krouskos’ DSP payment could be extended under this section.
8. A person’s portability period may be extended pursuant to the provisions of s1218C if the Secretary is satisfied that the person in unable to return to Australia because of one of the specified events. Section 1218C states:
“1218C.(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.
1218C.(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.
1218C.(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”.
9. It was contended by Mr Sparkes on behalf of the respondent that the event contemplated by s1218C preventing the return must occur during the initial portability period. Mr Sparkes argued that this was clear from the provisions of s1218C, The Guide to the Social Security Law (7.1.5.51) and case law.
10. It is stated in s1218C(2) that the event referred to in ss1 must occur or begin during a period of absence. It must follow that in order for the portability period to be extended, that is continue beyond the 13 week period, the event must have occurred during the portability period. If account was to be taken of an event that occurred outside the portability period, the portability period could not be extended within the meaning of s1218(2) for it would have already expired. As it was noted in Young and Secretary, Department of Family and Community Services [2004] AATA 392 at paragraph 22:
“The Tribunal concluded that the deep vein thrombosis ... occurred after the initial portability period had expired and therefore cannot be used to extend the portability period”.
11. Reference is also made to The Guide to the Social Security Law at 7.1.5.51 which states:
“A discretionary extension must be for a definite period, during which time the customer’s situation is expected to change and enable return to Australia. Should a person be unable to return to Australia on expiry of the new allowable portability period, the case should be assessed and a further definite period may be allowed if appropriate.
A discretionary extension may be allowed where the delegate is satisfied a customer is prevented from returning to Australia before the end of the portability period, for one of the reasons specified in section 1218C of the Social Security Act”.
12. Reference to relevant guides and policies may be made to assist in the interpretation of legislative provisions where there is nothing inconsistent in the directives offered in the Guides and Policies of the legislative provisions (see Drake (No 2) (1979) 2 ALD 60).
13. It was submitted on behalf of the applicant that the event which prevented Ms Krouskos’ return to Australia within the 13 week portability period was her mother’s illness and hospitalisation on 30 August 2004. Documents tended in evidence stated that Sophia Krouskos, mother of Jorjiana Krouskos was hospitalised on 30-8-04 until 4-9-04.
14. It was Ms Krouskos’ evidence that she was not aware of her mother’s state of health until she arrived in Greece. There was no other evidence presented regarding the state of health of the applicant’s mother prior to the applicant’s arrival in Greece.
15. The cause of the applicant’s mother’s hospital admission between 30-8-04 to 4-9-04 was stated as:
“Diarrhoea, vomiting, feverish, (illegible medicine nomenclature and numbers follow) thalassemia, cholecyctomy, appendectomy”.
The main clinical findings were stated as:
“Respiratory (illegible word). Circulatory = S1 S2 (2 illegible words), systolic aorta murmur without swollen lower limps. Digestive = bowel (2 illegible words), abdomen soft (1 illegible word). Liver palpated 3cm under the ribcage. Breasts without (1 illegible word), lymphatic glands not palpable”.
16. It was submitted on behalf of the respondent that the applicant’s mother’s illness as described above did not constitute a “serious illness” within the meaning of s1218C.
17. It was Ms Krouskos’ evidence that due to lack of staff she was expected and required to care for her mother while she was in hospital.
18. The issues that arise are firstly, whether Ms Krouskos’ mother’s illness constituted a serious illness within the meaning of s1218C(1); secondly, if it did, whether it prevented Ms Krouskos’ return to Australia; and thirdly, whether Ms Krouskos’ mother’s hospitalisation prevented her return to Australia.
19. Before the Tribunal can consider the above issues, the question remains as to whether Ms Krouskos would have returned to Australia within the 13 week portability period in any event but was prevented from doing so by her mother’s illness.
20. It was Ms Krouskos’ evidence that prior to her departure for Greece she had been on a methadone program for four years. This followed a heroin addiction which had continued for a period of between six and seven years. Ms Krouskos suffered frequent relapses whilst on the methadone program. Her last dose of methadone was on the day she left Australia and she suffered withdrawal symptoms during her journey to Greece. She had been very unwell and had postponed her departure on several occasions. Ms Krouskos was assisted with her departure by a friend and was in a very confused state at the time. Whilst Ms Krouskos did not deny having received correspondence from Centrelink advising that she must inform Centrelink of any change in her circumstances and of any plans to travel outside Australia, she said that she was in a very confused state and had not given any thought to her pension entitlement at the time that she left Australia.
21. There was little evidence of Ms Krouskos’ stated intentions at the time of her departure for Greece. However in subsequent correspondence, Ms Krouskos had stated that it was her intention to live permanently with her family in Greece.
22. In a letter addressed to Centrelink dated 12 April 2005 Ms Krouskos referred to s1218AA of the Social Security Act and stated that her absence from Australia is and will be permanent and that the purpose of her absence is to live with her family which live in Greece and to return to her country of origin.
23. Ms Krouskos had also stated in a letter to the Social Security Appeals Tribunal dated 23 May 2005:
“I left Australia on 30/72004 to come to Greece (country of birth) to live with my family, my mother and brother and his family. In Australia I suffered from health problems causing low quality life, economic poverty detachment isolation and suffering. I was unable to care for myself on a daily basis with the family or support base created and irreversible spiralling cycle in my health and wellbeing causing the various rehab programs to fail leaving incapacitated. I have no-one in Australia and wish to live with my family here in Greece permanently”.
24. Although this letter was not tended in evidence before this Tribunal, Ms Krouskos did not dispute its contents which are referred to in the decision of the Social Security Appeals Tribunal. Ms Krouskos said that she recalled writing the letters but was mistaken in saying that her departure was permanent. Instead she should have said that she did not know and still does not know whether her departure will be permanent. Ms Krouskos said in evidence that her reason for going to Greece was to see her parents and to recuperate and that if her mother had not been so unwell she would have returned to Australia. This may be her intention at the present time however the issue for the Tribunal to determine is Ms Krouskos’ intention during the portability period.
25. The Tribunal accepts that Ms Krouskos was very unwell at the time of her departure and was suffering from the effects of substance abuse, methadone withdrawal and depression. Ms Krouskos said that as her health improved she became homesick for Australia and thought about returning. Her return however was not possible because of her mother’s ill health. The Tribunal accepts her evidence that there are no other family members who are able to care for her mother.
26. All of the evidence presented to the Tribunal suggests that at the time Ms Krouskos departed Australia it was her intention to reside permanently with her family in Greece and that there was no expressed intention of returning to Australia in the near future. Although the Tribunal accepts that for many years Ms Krouskos lived comfortably in Australia, that she had full employment and enjoyed some 25 years of good health, in the latter years she suffered health problems arising from her substance abuse, a low quality of life, economic poverty, detachment and isolation. She was unable to care for herself on a daily basis without family or other support and having no-one in Australia decided to depart for Greece on a permanent basis. There is no evidence to support a finding that during the 13 week portability period Ms Krouskos formed any intention of returning to Australia. It was her evidence that it took some time for her health to improve and that she is still not fully recovered, more than three years after her departure.
27.
It was submitted that Ms Krouskos wrote her letter to Centrelink on 12
April 2005 contending that her absence from Australia will be permanent after being referred to the provisions of s1218AA of the Act. However it is not now open for Ms Krouskos to retract her statements after having received legal advice to the effect that her circumstances do not meet the criteria of this section in that there is no evidence that she is either severely disabled or terminally ill.
28. The Tribunal accepts that Ms Krouskos would like to return to Australia and that she has in recent times thought of this prospect but that her mother’s illness prevents her from doing so. However as stated above, the Tribunal does not accept that Ms Krouskos formed any intention of returning to Australia within the 13 week period following her departure terminating on or around 29 October 2004. Indeed the evidence is to the contrary.
29. Nor is the Tribunal satisfied that the medical evidence supports a finding that the illness of the applicant’s mother which was the cause of her hospitalisation during the portability period, constituted “a serious illness” within the meaning of s1218 such as to prevent Ms Krouskos’ return to Australia. The Tribunal is not satisfied that the short period of hospitalisation of the applicant’s mother for some four to five days and discharge on 4 September 2004 would have prevented Ms Krouskos’ return to Australia prior to 29 October 2004 had she wished to do so.
30. Ms Krouskos’ mother’s subsequent periods of hospitalisation and diagnosis of aortic stenosis are not relevant to the Tribunal’s findings because they do not relate to the portability period which terminated on or around 29 October 2004.
31. For the above reasons and on the basis that the Tribunal is not satisfied that Ms Krouskos formed an intention to return to Australia within the 13 week portability period, it determines that there is no basis upon which the portability period should be extended pursuant to the provisions of s1218C of the Act, Accordingly the Tribunal affirms the decision to cancel Ms Krouskos’ disability support pension from 29 October 2004.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 10 August and 13 October 2005
Date of Decision 21 November 2006
Counsel for the Applicant Ms Lynelle Loneragan
Solicitor for the Applicant Hobart Community Legal Service
Counsel for the Respondent Mr Brian Sparkes
Solicitor for the Respondent Centrelink Legal Services
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