Rosehart and Secretary, Department of Employment and Workplace Relations
[2006] AATA 417
•12 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 417
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2006/3
GENERAL ADMINISTRATIVE DIVISION ) Re MITCH JOHN ROSEHART Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member) Date12 May 2006
PlaceHobart
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal of 8 June 2005 and affirms the Centrelink decision of 9 March 2005 that the applicant was not entitled to receive disability support payments beyond 9 March 2005 in relation to his departure from Australia on 9 December 2004. ..............................................
Part-Time Member
CATCHWORDS
Social Security - disability support pension (DSP) - portability - portability period - Philippines - medical reports - extension of portability period - claimed reasons - Social Security Appeals Tribunal decision.
Social Security Act 1991 and Amendments – ss1217, 1218AA, 1218(c)
Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003.
Social Security (International Agreements) Act 1999
Guide to Social Security Law
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake No 2 (1979) 2 ALD 634
Re Makris and Secretary, Department of Family and Community Services (2005) AATA 375 (28 April 2005)
Re Young and Secretary, Department of Family and Community Services (2004) AATA 392 (19 April 2004)
Re Manolev and Secretary, Department of Family and Community Services (2005) AATA 398 (4 May 2005)
Re Nolte-Wilson and Secretary, Department of Family and Community Services (2004) AATA 434 (30 April 2004)
Re Rigney and Secretary, Department of Family and Community Services (2000) AATA 640
(2 August 2000)
Re Casarotto and Australian Postal Commission (1989) 17 ALD 321
REASONS FOR DECISION
12 May 2006 Associate Professor B W Davis AM (Part-time Member) Decision Under Review
1. The decision under review is a decision made by an officer of Centrelink on 9 March 2005 to limit overseas portability of Disability Support Pension (DSP) of the applicant to 9 March 2005, due to his continued absence overseas.
2. The decision was subsequently modified by the Social Security Appeals Tribunal (SSAT) on 8 June 2005, to continue the applicant’s portability period to 13 April 2005.
The Issue
3. For what length of time is DSP payable to the applicant, following his departure from Australia on 9 December 2004?
Legislation
4. The relevant legislation is the Social Security Act 1991 (“the Act”) and Amendments – ss1217, 1218AA, 1218(c). Amendments introduced by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 should also be noted. The Guide to Social Security Law is also relevant. The applicant currently resides in the Philippines, hence provisions of the Social Security (International Agreements) Act 1999 must be noted; however there is no welfare agreement between Australia and the Philippines, so Australia’s Social Security Act 1991 applies to the applicant.
Standard of Proof
5. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.
Background
6. The applicant, Mitch John Rosehart, has been in receipt of DSP and other welfare benefits since 1991. He claims to suffer a wide range of disabilities, including “back problems (scoliosis), periodic arterial fibrillation, chronic pain, severe depression, fatigue syndrome, knee problems, occasional blackouts, nervous tremors and difficulty concentrating”. A treating doctor’s report (Dr Lin, Eagleby, Queensland, 21 June 2004) summarised his situation as one of severe anxiety and depression, panic attacks and social phobia, causing palpitations and necessitating ongoing psychiatric consultation and counselling. The doctor did not classify him as severely physically disabled or terminally ill.
7. Mr Rosehart departed Australia for the Philippines on 9 December 2004, indicating he intended to return in early January 2005. He contacted Centrelink by phone on 22 February 2005 and advised he had separated from his partner; he further advised Centrelink by phone on 2 March 2005 that he might not return to Australia and asked for an extension of his DSP portability period. He did not give detailed reasons for the request, merely saying he had been bitten by a dog and would fax medical details. The medical certificate dated 8 February 2005 stated he suffered muscle pain, uneasiness in a closed space and asthmatic attack. Several medications were prescribed.
8. The permitted overseas portability period for DSP payments is 13 weeks unless very special circumstances apply (sections 1217, 1218 of the Act and Amendments introduced in 2003). Having departed Australia on 9 December 2004, the applicant’s portability period ended on 9 March 2005 and a decision was made by a Centrelink officer to cancel DSP payments to Mr Rosehart from that date. The applicant requested the decision be reviewed and an ARO (Authorised Review Officer) conducted such an investigation before affirming the decision on 25 March 2005. Mr Rosehart then appealed to the SSAT which on 8 June 2005 extended the portability period to 13 April 2005. The applicant then submitted an application 6 January 2006 for de novo review by the Administrative Appeals Tribunal (AAT).
9. In reaching its decision of 8 June 2005, the SSAT noted two medical certificates dated 10 March and 7 April casting some doubt about Mr Rosehart’s ability to travel, given asthmatic attacks, but these did not clarify whether his state of mental depression and anxiety was being treated or might preclude travel. The SSAT noted there was no evidence of asthma attacks after 13 April 2005 and formed an opinion it was reasonable to allow a month to ensure the situation had stabilised sufficient for travel. Applying section 1218(c) of the Act, they determined 13 April 2005 as the end of Mr Rosehart’s DSP portability period.
The AAT Hearing
10. The AAT hearing was conducted in Hobart on 20 April 2006. Mr Benedict Bartl of the Hobart Community Legal Service appeared as counsel for the applicant; Mr Brian Sparkes appeared for the respondent Department of Employment and Workplace Relations (DEWR). Mr Rosehart gave evidence by telephone from the Philippines; no witnesses were called but a number of exhibits were taken into evidence.
11. Mr Bartl put several questions to the applicant who repeatedly responded that he was in dire straits, given no income and severe disabilities, unable to afford essential medications and medical treatment. He feared for his life and was in utter despair, not knowing what to do next.
12. Mr Rosehart said that in the Philippines he had been caring for his father-in-law and mother-in-law, but the father-in-law had died in March 2006 after four month’s hospitalisation and the mother-in-law was elderly and very frail. He had exhausted all financial support relatives had been able to provide and was now reduced to begging in the streets, since DSP had been cancelled. He had cashed in his return air ticket to Australia, but could not recollect the date in mid 2005.
13. Questioned about the dog bite incident of 8 February 2005, Mr Rosehart said he could not remember details but had sought out-patient care, as stray dogs sometimes carried rabies. He subsequently suffered asthma attacks which led to hospital treatment on 12-13 March. He was further advised on 7 April 2005 to take rest, as some asthma symptoms persisted. He had not received any treatment for depression and anxiety during this period and considered his health had markedly deteriorated.
14. Mr Rosehart also claimed he had been assaulted and robbed in a fracas involving his brother-in-law and other individuals. He had been knocked unconscious and a watch worth $800 stolen. He reported the matter to the police, but the culprits had not yet been fully identified and arrested. The police had warned him it could take up to a year to resolve the matter, as he intended to pursue compensation.
15. He was questioned about his employment situation in Australia and mental and physical condition prior to leaving for the Philippines. He said he left school at age 17 in 1970, but could only obtain part-time jobs intermittently, having to rely upon welfare benefits for considerable periods due to health problems. He had commenced receiving DSP in 1991 and had been reliant upon it ever since. He was suffering anxiety depression and other maladies prior to leaving Australia and considered his mental and physical condition had deteriorated since. He was afraid of suffering a stroke at any time, but could not afford medical examination and essential medications.
16. He was asked why he had not returned to Australia in early 2005, since this offered the prospect of continuation of DSP and might have solved some of his problems. He replied that he had “lots of things to do”, in his extended family situation. He was also asked why he had not contacted Centrelink to submit a formal request for extension of DSP payments. He said he was not familiar with social security law and did not understand his right to appeal until he received some written information from the Ombudsman’s office. He said he did not always receive correspondence sent to his Australian address.
17. In closing submissions, counsel for the applicant said there were several reasons for the applicant‘s failure to return to Australia in 2005. Mr Rosehart’s health was poor prior to visiting the Philippines and dog bite, asthmatic attacks and hospitalisation precluded travel at the end of the portability period, as a one month extension granted by the SSAT proved. There was other medical evidence querying his ability to travel at a time he was providing assistance and care to his extended family. He was also the victim of a vicious assault and robbery and was assisting the police in their inquiries, as well as seeking compensation for injuries sustained and property taken from him.
18. The central submission of the applicant was that the events described and his ongoing poor state of health entitled Mr Rosehart to be paid a DSP until such time as his health improved.
19. Counsel for the respondent said he recognised the difficult circumstances Mr Rosehart faced, however most of his problems were of his own making, given his failure to return to Australian in early 2005. It was clear the applicant was very unwell prior to departing Australia on 9 December 2004, but the record showed he was prone to brief periods of self-hospitalisation for anxiety depression on numerous occasions between 1995 and 2004. A question arose as to whether his circumstances in the Philippines were any different.
20. Extension of the DSP portability period is provided for in ss1218A and 1218C of the Act, but only if a significant event occurs during the portability period itself. Even so, the provision is discretionary, the Secretary of the Department (DEWR) having to determine whether the circumstances warrant a limited extension of time until the individual is able to return to Australia. Mr Rosehart had requested an indefinite period of DSP portability, but this is not provided for in the legislation and the SSAT had erred in law in granting an extension of DSP portability from 9 March 2005 until 13 April 2005; the power to grant such an extension lay with the Secretary and the recommendation should have been made to the Department for action.
21. There were some discrepancies in the medical evidence, but Mr Rosehart had been able to travel to the Philippines in December 2004 and there was no convincing evidence a serious, grievous or emergency factor or event had prevented him from returning to Australia in early 2005. Overall his case had little merit.
22. Mr Rosehart had argued he was and is caring for an extended family in the Philippines. This may be the case, although no firm evidence exists as to what the relationship is and how it operated during the portability period and in any case involves people who do not meet the definition of “family” within the meaning of the Act.
23. The applicant had also referred to an assault and robbery he suffered, but this occurred on 31 December 2005, nine months after the DSP portability period and therefore is not relevant to the current case. The applicant forwarded an e-mail to the AAT on the day of hearing, indicating the name of his assailant was now known.
Analysis
24. This is a de novo review where the Tribunal must consider all available evidence, statutory and policy provisions and any relevant prior case decisions.
25. As previously stated the principal legislation is the Social Security Act 1991 (“the Act”) and Amendments, also other amendments incorporated into the Act arising from the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (the amending Act). These amendments which entered into force on 1 July 2004 represented a tightening of the law relating to portability of pensions, consistent with government policy, reducing the allowable period of temporary overseas absence for portable social security payments from 26 weeks to 13 weeks.
26. This is reflected in the explanatory memorandum to the amending legislation, which says in part:
“Reducing portability period
This Bill reduces the allowable period of temporary overseas absence for portable social security payments from 26 weeks to 13 weeks. The new portability period will also apply to disability support pension although there will be capacity to grant a portability period to a severely disabled disability support pensioner in defined circumstances.”
There are some saving provisions for the severely disabled, but these apply only to individuals already overseas on 1 July 2004, who had indefinite portability and satisfied other requirements set out in sections 1213 to 1220 of the Act.
27. Section 1217 of the Act provides that a person in receipt of DSP has a maximum portability period of 13 weeks:
“Meaning of maximum portability period, allowable absence and portability period
Meaning of maximum portability period1217(1) The person's maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:
(a) the payment (as specified in column 2 of the table); and
(b)the class of persons to which the person belongs (as specified in column 3 of the table).
Meaning of allowable absence
1217(2) The person's absence is an allowable absence in relation to the payment at a particular time if, at that time:
(a)it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and
(b)except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B of Division 2 of Part 4.2 applies, the absence does not exceed the period specified in column 5 of that item.
Meaning of portability period if unlimited maximum portability period
1217(3) If the person's maximum portability period for the payment is an unlimited period, the person's portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.
Meaning of portability period if maximum portability period limited
1217(4) If the person's maximum portability period for the payment is a period of weeks, the person's portability period for the payment, in relation to the period of absence, is the period:
(a) beginning at the commencement of the period of absence; and
(b) ending at the earlier of the following times:
(i)the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;
(ii)the end of the period of weeks that is the person's maximum portability period for the payment.
Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.
Portability of social security payments
Column 1
Column 2
Column 3
Column 4
Column 5
Item
Payment
Person
Absence
Maximum portability period
… 3
Disability support pension
All persons
Any absence
13 weeks (but see also section 1218AA)
(Individuals required under the Social Security (Administration) Act 1999 to inform the Department of any change of circumstances).
28. Section 1218AA permits the Secretary to determine that a particular pension’s maximum portability period should be extended or unlimited if a number of qualifying circumstances are met. However section 1218AA does not apply to the applicant, as there is no medical evidence he was severely disabled at the time he left Australia on 9 December 2004, or that he was terminally ill. Neither did he go to the Philippines to be near a family member, as the definition for the latter is limited to a partner or independent child and does not include in-laws (see the Social Security Guide and subsection 7(6D) of the Social Security Act 1991).
29. Section 1218 provides that a person’s portability period may be extended (discretionary) if the person is unable to return to Australia because a specified event occurs during the initial portability period:
“Extension of person's portability period
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.”
30. Application of discretionary powers under s1218C are severely limited anyway. The explanatory memorandum to the legislation states it applies only to a person undergoing grievous circumstances; the Guide to Social Security Law says it applies only to an extreme or emergency situation; and in earlier AAT decisions such as Manolev and Secretary, Department of Family and Community Services (2005) AATA 398 it was ruled section 1218C should only be applied in cases of serious illness or emergency circumstances:
“…the intention was that granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would be over in a short period of time and the person involved would be able to return to Australia.”
31. Turning more directly to Mr Rosehart’s situation, the key issue is for what length of time DSP was payable to the applicant, following his departure from Australia on 9 December 2004. But some associated queries must be answered first:
(a) how do the portability rules apply to the applicant?
(b) what is the medical evidence?
(c) have the portability rules been lawfully applied in this case? And
(d) are there any other factors which the Tribunal should take into account?
32. The portability rules are specific and the period limited to 13 weeks unless special circumstances apply (s1217 of the Act). Section 1218AA does not apply to the applicant, since he was neither severely disabled or terminally ill at the date of leaving Australia (9 December 2004). Mr Rosehart had indicated he would return to Australia in early January 2005, but it was not until 22 February, near the end of his portability period, that he informed Centrelink he would not be returning and sought an extension of the portability period. No detailed case or formal application was made, merely a claim he had been bitten by a dog on 8 February and suffered some reaction to it. Given this was not a case of serious, grievous or emergency circumstances, there are grounds for believing Centrelink acted lawfully in cancelling his DSP from 9 March 2005. The SSAT later extended the DSP portability period to 13 April 2005, although doubt exists as to their power to do so.
33. There are some queries about the associated medical evidence. In a report dated 21 June 2004, Mr Rosehart’s treating doctor, Dr H Lin, accurately listed the applicant’s disabilities as severe anxiety depression, paroxysmal atrial tachycardia, spondylolisthesis and scoliosis, chronic fatigue syndrome and osteoarthritis in most joints, but well managed. Despite these maladies Mr Rosehart had no hesitation in travelling to the Philippines on 9 December 2004, intending to return in early January 2005. It was not until 8 February that circumstances changed, he advised Centrelink on 22 February he would not returning and was not in a position to do so, given health problems and family circumstances.
34. Medical certificates by a Dr Wilfreda Villamayor (Maternity and Pediatric Clinic) dated 2 March 2005 and 10 March 2005 are not totally legible, but indicate Mr Rosehart suffered asthma attack and some other reactions to the dog bite incident and “… these I think prevent him travelling”. The comments stop short of saying Mr Rosehart was unable to travel and there is no evidence to judge whether his reactions arose from his pre-existing medical condition or represented a new phase in physical or mental deterioration.
35. A report by a Dr Reynaldo Balintona dated 4 July 2005 is more specific, indicating the applicant was admitted to a medical centre on 12-13 March 2005 because of difficulty breathing, diagnosed as bronchial asthma, mild and intermittent. A later report dated 3 January 2006 by Dr Wilfreda Villamayor records further asthma and anxiety attacks during 2005 and the need for Mr Rosehart to see a psychiatrist. All the above evidence was reassessed in a HAS (Health Services Australia) report dated 18 April 2006, which concluded the applicant was probably not in a condition to travel back to Australia on 2 March or 12-13 March 2005. The medical advisor (Dr Mieka Tabart) noted there was no detailed explanation of the anxiety symptoms and their functional effect or linkage to asthma, but they constituted pre-existing illness prior to Mr Rosehart’s travel to the Philippines. In the view of the Tribunal the relevance of this medical evidence is limited, some well after the DSP portability period had ended, and after 22 February 2005, when the applicant had already decided he was not going to return to Australia.
36. The Tribunal has re-examined all the available evidence, in an endeavour to discover whether any other factors might exist, to aid the applicant in his difficult personal situation. However, no new or significant factors have been identified. Mr Rosehart is entitled to live in the Philippines as long as he wishes, but his eligibility for DSP ceased at the end of the portability period in accordance with law on 9 March 2005. His subsequent medical and personal circumstances are regrettable, but arise from personal decisions, not Centrelink actions. The robbery and assault incident lies well outside the DSP portability period and thus has no relevance in this case. Overall, the original decision not to continue DSP payments beyond 9 March 2005 is justified and affirmed.
Decision
37. The Tribunal sets aside the decision of the Social Security Appeals Tribunal of 9 June 2005 and affirms the Centrelink decision of 9 March 2005 that the applicant was not entitled to disability support payments beyond 9 March 2005 in relation to his departure from Australia on 9 December 2004.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 20 April 2006
Date of Decision 12 May 2006
Counsel for the Applicant Mr Benedict Bartl
Solicitor for the Applicant Hobart Community Legal Service
Counsel for the Respondent Mr Brian Sparkes
Solicitor for the Respondent Centrelink
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