Rejna and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 665

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 665

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: 2008/4622

GENERAL ADMINISTRATIVE DIVISION        )   

ReMilan REJNA

Applicant

AndSecretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

TribunalDr JD Campbell, Member

Date3 September 2010

PlaceSydney

DecisionThe decision under review is affirmed with a recommendation that consideration be given by the necessary authority for Mr Rejna to receive act of grace payments of his disability support pension, to be paid for an unlimited period, if he returns to live permanently in the Czech Republic as outlined in paragraph 19 of these written reasons.

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

Dr JD Campbell
  Member

CATCHWORDS

Social security - disability support pension – extended portability period – severely disabled – terminally ill – special consideration- decision affirmed

…

RELEVANT ACT/S

Social Security Act 1991 (Cth): ss 1217(2), 1218AA

…

CITATIONS

…

OTHER AUTHORITIES

…

REASONS FOR DECISION

3 September 2010	Dr JD Campbell, Member
BACKGROUND

1. Mr Rejna is aged 60 years at the date of hearing.  He was born and educated in the Czech Republic.  Mr Rejna worked in various labour-intensive activities (car mechanic, driver) in various European countries before arriving in Australia in 1991.

2. Mr Rejna has never worked in Australia.  In 1992, Mr Rejna received sickness benefits associated with the diagnosis of tuberculosis, cervical disc disease, oesphagitis and haematemesis, chronic pancreatitis, gastritis, alcoholic liver disease and depression.  Mr Rejna has been in receipt of disability support pension (DSP) since 21 April 1994.

3. Currently, Mr Rejna lives alone in housing department accommodation.  Mr Rejna has two adult children and an elder sister living in the Czech Republic.

4. Mr Rejna first made contact with Centrelink on 15 February 2007 seeking to have his DSP paid indefinitely if he returned to live with his children in the Czech Republic. A subsequent enquiry was made on 28 April 2008. On this occasion, Centrelink advised Mr Rejna that he could only be paid DSP for 13 weeks if he returned to live in the Czech Republic.  This decision was affirmed by a Centrelink Authorised Review Officer on 20 June 2008 and subsequently by the Social Security Appeals Tribunal (SSAT) on 1 September 2008.

5. The hearing of the matter before this Tribunal has been delayed by Mr Rejna returning to the Czech Republic for a period in 2009, together with delay associated with obtaining a definitive medical report from the treating head and neck specialist.

6. At the hearing of the matter before this Tribunal, Mr Rejna was assisted by a Czech interpreter.

ISSUE

1. The issue to be considered in this matter is whether Mr Rejna satisfies section 1218AA of the Social Security Act 1991 (the Act), therefore allowing an extended portability of DSP and for this to continue to be paid to him for an unlimited period.

consideration and findings

1. In reviewing all the medical evidence before me, including the particular medical reports and the voluminous clinical notes, I note Mr Rejna’s many episodes of hospitalisation at both Royal Prince Alfred Hospital and Concord Hospital. I further note the depth of medical investigation and the intensity of medical treatment that Mr Rejna has received over the last few years.  Such hospitalisation episodes have involved intensive care ward treatment associated with tracheostomy to assist in the treatment of aspiration pneumonia arising from chronic oropharyngeal dysfunction.

2. I note that as a consequence of Mr Rejna’s swallowing difficulties, Dr Clifford, a consultant head and neck surgeon, observes that this is a persistent abnormality, which results in a significant tendency towards aspiration giving rise to recurring serious chest infections, which may be life threatening.  Dr Clifford considers the cause of the swallowing difficulties to be multi-factorial, with the cervical osteophyte probably a contributing factor, as well as alcohol abuse.  Dr Clifford notes that Mr Rejna has been recommended to have all his nutrition by way of a permanent gastrotomy tube – a suggestion declined by Mr Rejna.

3. Having considered all of the medical evidence, I find that Mr Rejna currently suffers from the following conditions:

   (a)Swallowing difficulties associated with a cervical osteophyte, which gives rise to episodic regurgitation pneumonic episodes requiring periods of intensive hospitalisation;

   (b)Chronic alcohol abuse with associated liver, gastric and pancreatic disease episodes;

   (c)Chronic depression; and

   (d)Back pain.

4. Further, I conclude that the medical evidence before me suggests that the various conditions I have nominated will continue to exist as Mr Rejna ages and that deterioration can be expected with increasing requirements for medical treatment and hospitalisation.  I also conclude, and in so doing, rely upon the opinion expressed by Dr Clifford, that it is very difficult to predict life expectancy or prognosis with any further infections possibly being life threatening.

5. In addressing the issue of an extended portability for DSP payments, I observe that s 1217(2) of the (the Act) determines that the normal maximum portability period for DSP payment is 13 weeks, except in circumstances nominated by s 1218AA of the Act.

6. Section 1218AA of the Act provides:

   Extended 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.

1. In addressing the necessary qualifications nominated in s 1218AA, I conclude after reviewing all the material before me, that Mr Rejna satisfies the qualification requirement of being severely disabled as defined in subsection 23(4b) of the Act as well as all the other requirements, bar the qualification that he must be terminally ill.

2. In considering the issue of a person being terminally ill, I note that there is no statutory definition contained with the Act.  I have had occasion to consider the definition of ‘terminal’ as disclosed in the following text:

   The New Shorter English Dictionary – pertaining to the final stage of a fatal disease or patients with a disease in such a state; and

   The Macquarie Dictionary 5^th Edition – having reached the point in the course of a disease where death from the disease is certain.

1. In my view, the characterisation of an illness as terminal after consideration of the definitions nominated involves consideration of whether the illness has reached a stage where the disease underlying the illness is of a fatal nature and has been progressed to the stage of finality where death from the disease is certain.

2. In Mr Rejna’s case, I conclude that his circumstance does not satisfy such a characterisation test.  In so finding, while noting that because of his swallowing difficulties he has a propensity to suffer further episodes of aspiration pneumonia, there is no material before me that nominates that such episodes will lead to death with a degree of certainty other than a possibility.  In short, it is evident that his current medical circumstances satisfy an outcome that his illness has not reached the final stages of a disease sequence or whether he has reached a point in the disease process where death from the disease is certain.

3. In concluding as I have, I rely on the opinion of Dr Clifford, who in his report of 29 July 2010 characterises Mr Rejna as having a serious medical problem, but that he is not terminally ill.  Finally, while I note that the Social Security Guide refers to a life expectancy of 24 months or less, as an aid to interpreting ‘terminally ill’, I find it of little assistance in characterising the nature of the illness in this matter.

4. In summary, I conclude that Mr Rejna is not terminally ill, and hence does not satisfy the qualification requirement nominated in s 1218AA(c) of the Act. In such circumstances, his claim for extended portability for his DSP payments for an unlimited period must fail, with the decision under being affirmed.

special consideration

1. I have given much thought to the circumstances detailed in Mr Rejna’s application.  In the light of such, I recommend that consideration be given by the necessary authority for Mr Rejna to receive act of grace payments of his DSP to be paid for an unlimited period, if he returns to live permanently in the Czech Republic.  My reasons for such a recommendation rest with the following:

   (a)Mr Rejna lives alone in housing commission accommodation.  Mr Rejna has no relations or particular friends in Australia.  Mr Rejna has had a turbulent history since he arrived in Australia in 1991 with the onset of tuberculosis and other illnesses associated with alcohol abuse leading to many interactions with health and police authorities.

   (b)Mr Rejna is a lonely and depressed person in his current circumstances.  Mr Rejna has a son, daughter and an older sister living in the Czech Republic. He has expressed a desire to live out his remaining days in that country.  Mr Rejna has investigated his access to, the standard, and the availability of health care in the Czech Republic and he is satisfied that his needs will be met.

   (c)Mr Rejna, while not suffering a terminal illness at this time is severely disabled by his swallowing difficulties, the nature of which I have referred to earlier in this decision.  Treatment for this condition involves a high protein fluid mixture diet.  A permanent gastrotomy tube has been recommended to minimise aspiration of diet, but has been refused.  Other current medical conditions include depression and alcohol abuse.

   (d)Mr Rejna’s medical conditions have resulted in significant medical and hospital attention involving serial investigation and prolonged periods of hospitalisation involving many days in intensive care facilities in two respected teaching hospitals.  Further, Mr Rejna’s condition is not static and will deteriorate with time, leading to increasing periods of hospitalisation and the need for significant medical, hospital and community nursing care; and

   (e)Mr Rejna will continue to receive DSP if he remains in Australia with further costs arising from his medical, nursing, hospital, pharmaceutical and community nursing needs.  These costs will increase as his health status deteriorates over time and will be significant.  A permanent return to the Czech Republic in the circumstances recommended would result in continuing DSP payments so as to assist with living costs and securing access to healthcare, as I understand he has no entitlement to social security benefits as provided by the Czech Republic.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell, Member

Signed:   ...........[sgd]................................................................
               Associate

Dates of Hearing:  17 July 2009 and 27 August 2010
Date of Decision:  3 September 2010
Applicant representative:                   Applicant in person

Respondent representative:               Ms S Mantaring, Centrelink Advocacy Branch