RPZP and Secretary, Department of Social Services
[2014] AATA 800
•29 October 2014
[2014] AATA800
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4713
Re
RPZP
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms S Taglieri, Member
Date 29 October 2014 Place Hobart The decision under review to refuse to extend the portability period beyond 28.2.13, was correct. The Application is dismissed.
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Ms S Taglieri, Member
CATCHWORDS
Portability of Carer Payment and Allowance; whether to extend portability period due to serious illness; discretion refused to be exercised.
LEGISLATION
Social Security Act 1991, sections 1215, 1217 and 1218C
CASES
Jin v Centrelink [2011] FCA 337
Aftab and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 643
Manolev and Secretary, Department of Family and Community Services [2005] AATA 398
Young v SDFCS (2004) AATA 392
Re: Gallifuoco and SDSS (1988) 15 ALD 160
REASONS FOR DECISION
Ms S Taglieri, Member
INTRODUCTION
This review relates to the portability of RPZP’s Carer Payment and Allowance (“the Carer Payments”). RPZP went to London on 18.1.13 and did not return until 1.5.13. The Secretary of the Department of Social Security (“the Secretary”), suspended her Carer Payments on 1.3.13 because she was only eligible to receive the Carer Payments for 6 weeks while absent from Australia.
RPZP requested an extension of the 6 week portability period applicable to the Carer Payments and the Secretary refused the extension. She subsequently applied to this Tribunal for Review of the decision to refuse extension of the portability period.
APPLICABLE LAW
Sections 1215 and 1217 of the Social Security Act 1991 (SS Act) prescribe a maximum portability period of 6 weeks for the Carer Payments. Section 1218C of the SS Act allows for extension of this period in specific circumstances. For the purpose of this Review, the only potentially relevant circumstance is contained in section 1218C(1)(b), which relates to “serious illness”. For an extension to be allowed, section 1218C(2) must also be satisfied. Namely, the event of “serious illness” must occur or begin during the absence from Australia and prior to the expiry of the 6 week portability period.[1]
[1] Jin v Centrelink [2011] FCA 337
The meaning of “serious illness” has been said to include the deterioration of a pre-existing illness.[2] However, in Manolev and Secretary, Department of Family and Community Services, the Tribunal emphasised that the event in question must be specific, and cannot relate to any pre-existing condition or something which came on gradually.[3] The approaches to pre-existing illness, seem at first blush contradictory, but in my view can be reconciled. Continuation of a pre-existing illness with no material change in the effects of the illness would not permit favourable exercise of the discretion. On the other hand, a material change which incapacitates a person from return travel, would permit favourable exercise of the discretion.
[2] Aftab and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 643 at paragraph 28
[3] [2005] AATA 398 at paragraphs 28,29 and 30
The only issue in this case is whether on the facts existing after RPZP left
Australia and prior to 1.3.13, the discretion to extend the portability period should be exercised. If so, then the decision to suspend the Carer Payments was wrong.
THE EVIDENCE AND FINDINGS OF FACT
The evidence before the Tribunal about RPZP’s absence from Australia was as follows.
(a)The reason for her departure was to seek medical treatment for a pre-existing kidney condition and she intended to return to Australia but the date of her return was not yet certain.[4]
[4] T4, letter to Centrelink dated 15.1.13
(b)She had a phone conversation with officers of the Secretary on 17 January 2013 and was advised that the Carer Payments were only payable for 6 weeks while absent from Australia. In the same phone conversation she advised she would or intended to return to Australia within the 6 week period.[5]
[5] T18, page 96, electronic record of portability interview
(c)RPZP gave oral evidence that after her departure from Australia she possibly had no further contact with Centrelink until 13 March 2013.
(d)RPZP’s oral evidence was that a few days prior to her booked flight on 12.2.13 she started to experience severe pain due to her kidney condition. That she could not even stand and felt like she was falling if she tried. That she just lay in bed and stayed in the room at which she was boarding, and did not see a doctor around this time.
(e)On 13.3.13, in an email to Centrelink, RPZP said that she had not returned to Australia because of ongoing treatment for the kidney condition. She gave details of continuing treatment with a Dr Yu and an appointment which had been rescheduled because of “financial problems” to the 3rd of April 2014.
(f)RPZP further advised the Department in an email of 17.3.14 that she had not expected the treatment in London to have taken as long as it had, but that she was wanted and was able to return to Australia.
(g)In her oral evidence RPZP admitted that the primary reason for going to London was to care for her daughter. She frankly admitted she had initially not disclosed this when she wrote to Centrelink on 1.5.13.
(h)Despite the admissions in paragraph (g), RPZP was adamant in her oral evidence that she did have treatment for her kidney condition while in London. She gave evidence of three medical contacts in the period 19.1.13 to 2.4.13:
·First, when she telephoned a Hospital;
·Second, when she saw a female GP in Paddington on about 21 February 2013, from whom she tried to get a certificate concerning inability to fly[6];
·Third, a visit to St Mary’s Hospital on 2.4.13.
She has also stated that she saw a Dr Yu, who is referred to as the Dr who prepared herbal medicines which she used[7].
(i)RPZP booked a return flight to Australia for 12 February 2013[8]. She gave oral evidence that she lost the money for that fare, but the ticket booking documents being T7, identify that the fare was a date flexible one.
(j)After her return to Australia, RPZP wrote to the Department on 6.5.13[9]. In that letter she gave extensive information about the real reasons for her trip to London, her intention to return in 3 weeks, the reason she had bought a one way ticket before leaving, the booking of her return ticket, beginning to experience severe symptoms of the kidney condition around the date she had booked to return, and being advised by the airline not to travel.[10]
(k)There were medical records from the Royal Hobart Hospital, a short report of Dr Sargent (GP), medical records from the Hopkins Street Medical Clinic and from St Mary’s Hospital in London. All these materials attest to RPZP’s kidney condition, renal colic, and treatment relating to it over a significant period before and after she left Australia.
(l)The material from St Mary’s Hospital is evidence that RPZP was seen as an outpatient on 2.4.13, prescribed naproxen and discharged for follow up with her usual doctor.
[6] Date of appointment apparent from T
[7] T9 at page 27
[8] T7
[9] T14
[10] Page 39 of T14
I find that before leaving Australia, RPZP was aware that she would not receive the Carer Payments if absent from Australia for more than 6 weeks. Based on her oral evidence and the contents of her letters to the Centrelink, I am satisfied that she intended to return to Australia even though she initially purchased a one way airfare. Then, while in London she purchased a date flexible return airfare to Australia. Meaning, the return date of her flight could be changed, albeit at an additional cost. I am not persuaded that RPZP lost the cost of the fare she booked for return on 12.2.13, as the ticket documentation, clearly specifies:
“DATE CHANGES TO OUTBOUND FLIGHT BEFORE DEPT – 50 PER PERSON
DATE CHANGES TO ONWARD FLIGHT/S AFTER DEPARTURE – 100 WITH AIRLINE”[11]
[11] T7
I am satisfied on the basis of the RHH Hospital records, the Hopkins Street Clinic records and RPZP’s evidence that:
(i)RPZP suffers from a fairly longstanding kidney condition, the nature of which causes fluctuating and unpredictable symptoms;
(ii)The kidney condition pre-existed her departure from Australia on 18.1.13;
(iii)The kidney condition is chronic and at times is capable of causing acute and very debilitating symptoms.
The medical literature received into evidence after leave was granted on 3.9.14, is also consistent with such findings.
The portability period should be extended only if I am satisfied that RPZP experienced serious illness such that she was unable to take a return flight to Australia prior to 1.3.13.[12]
[12] Young v SDFCS (2004) AATA 392 at paragraph 22
RPZP’s evidence is that she was well enough to travel and return to Australia by 13 March 2013[13]. After that date, she visited St Mary’s Hospital and was seen in the emergency department as an outpatient, given a prescription and directed to her usual doctor for follow up. If the symptoms and presentation were acute and debilitating, one would have expected that the attending doctor to admit her, or at least done more than simply provide a prescription. Further, the hospital did not give her a certificate stating that she was not able to fly, although it appears that was one reason she attended the hospital.[14]
[13] T9, email to Department
[14] T18, page 83
On about 21.2.13, RPZP says she saw a female GP in Paddington for the purpose of seeking a certificate that she was not fit to take a flight, but this was well after the booked return flight on 12.2.13. The GP did not give her the certificate. This is not surprising as she had not consulted with her at the time of the booked flight. RPZP received no treatment and paid no fee for the visit. It is open to infer and I do so, that had RPZP’s symptoms been serious at the time of the consultation, treatment of some kind would have been given and a certificate issued about her health status at the time of the consultation, as by that time RPZP knew she had not taken the flight on 12.2.13.
The evidence permits the following findings about RPZP’s health status/medical:
18.1.13 Well to travel to London
Prior to 12.2.13 Well enough to book a return flight for that date
21.2.13Consult with female GP, to obtain a certificate relating to not flying on 12.2.13 and no treatment given
28.2.13end of 6 week portability period
13.3.13Advice to Centrelink that fit to take return flight planned for 16.3.13. No mention of claimed inability to fly on 12.2.13 or since.
17.3.13Advice to Centrelink that fit to take return flight. Again no mention of claimed inability to fly on 12.2.13 or since
2.4.13Consult at St Mary’s Hospital and advised to follow up with usual doctor
Pursuant to the provisions of the SS Act, the discretion to extend the portability period can only be exercised if I am satisfied that within the portability period (prior to 1.3.13), RPZP suffered a serious illness that made her unable to return to Australia. RPZP asks me to accept her evidence that she was unable to board the booked return flight to Australia on 12.2.13, due to severe symptoms of her kidney condition as described at paragraph 6(d). This evidence is not directly or indirectly corroborated by other witness evidence, medical records or documentation. Further, the probity of the evidence tends to be rebutted by the fact that she did not claim inability to undertake return travel due to her kidney condition until 27.3.13, when she offered to provide a letter from the Hospital in the UK.
RPZP did not attend the hospital until 2.4.13 and even after that visit, she was not able to obtain a letter recording that she was or had been unable to take a return flight to Australia prior to 1.3.13 due to the kidney condition.
While I am not prepared to accept the submissions made by the Secretary’s Counsel, that RPZP has been untruthful about her claim to be unable to return to Australia due to the symptoms she claimed to suffer from her pre-existing kidney condition between 10.2.13 to 1.3.13, I am not persuaded that she was unable to do so.
RPZP is not required to satisfy a legal onus of proof that the requirements for granting the extension of the portability period were satisfied. However, where legislation provides for exercise of a discretion on satisfaction of certain matters, it is for the person seeking favourable exercise of the discretion to provide the required degree of satisfaction as to those matters.[15]
[15] Re Gallifuoco and Secretary, Department of Social Security (1988) 15 ALD 160
On the state of the evidence and the findings I have made, I am not satisfied to the requisite standard of the balance of probabilities that RPZP was unable to return to Australia prior to the expiry of the portability period, due to onset of acute symptoms relating to her pre-existing kidney condition.
CONCLUSION
The decision under review to refuse to extend the portability period beyond 28.2.13, was correct. The Application is dismissed.
I certify that the preceding 18 (eighteen) paragraphs
are a true copy of the reasons for the decision
herein of Ms S Taglieri, Member.
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Administrative Assistant
Dated 29 October 2014
Date(s) of hearing 2 September 2014
Applicant Self
Solicitors for the Respondent Mr Brian Sparkes, Program Review and Litigation Branch
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