SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant And MICHAEL MOURATIDIS
[2010] AATA 318
•30 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 318
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/6143
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
MICHAEL MOURATIDIS
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date30 April 2010
PlaceMelbourne
Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal that the respondent is entitled to a continuation of the payment of his Disability Support Pension from 29 March 2009.
.....(sgd G L McDonald)......
Deputy President
CATCHWORDS
DISABILITY SUPPORT PENSION – portability – respondent’s return visits to Australia – Centrelink advice re portability – mother’s condition worsened – time applicable to portability – decision affirmed.
Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 ss 1215, 1217, 1218C, 1218C(1), 1218C(2) and 1218C(2)(a)
Manolev and the Secretary, Department of Family and Community Services [2005] ATA 398
Morched and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 584REASONS FOR DECISION
30 April 2010 Mr G L McDonald, Deputy President 1. The applicant is applying for a review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 3 December 2009 which set aside a decision made by a delegate of the applicant cancelling the payment of the respondent’s Disability Support Pension (DSP) from 29 March 2009. The DSP was cancelled following a decision not to extend the period in which the pension could be paid because the respondent’s absence overseas beyond the 13 week period provided in ss 1215 and 1217 of the Social Security Act 1991 (the Act).
2. The applicant was represented by Ms Bramley, departmental advocate and the respondent by Ms Marks of Counsel. The Tribunal had before it the documents filed for purposes of satisfying s 37 of the Administrative Appeals Tribunal Act 1975, as well as detailed written submissions of the parties. No oral evidence was called and the facts are undisputed. The application of s 1218C of the Act is in issue.
The Facts
3. The Tribunal is satisfied of the following facts. The respondent was born on 6 February 1949 in Greece and came to live in Australia with his family, which includes his mother, in approximately 1965.
4. In 1990 the respondent injured himself and was in receipt of a DSP from about that time. For some period prior to 28 May 2008 he was also receiving a carer’s pension to assist in looking after his mother.
5. On 23 May 2008 he accompanied his mother, who was then aged 90 years, on a return visit to Greece. He stated the reason for accompanying his mother was because she was old and frail.[1] It was anticipated that the visit would be for a short period only.
[1] T document, T12 page 40.
6. The Tribunal accepts that the respondent returned to Australia on 22 August 2008 just prior to the expiration of the 13 week period permitted for DSP recipients to be outside Australia before payment of the benefit would ordinarily cease.
7. On this return to Australia the respondent notified the applicant that he intended to return to Greece on 12 September 2008 apparently planning to return to Australia on or by 12 December of that year. In a letter to the respondent dated 2 September 2008 the applicant advised him that his pension may be reduced or stopped, his carer’s allowance and concession card would be cancelled if his return was delayed.[2] The letter was silent as to whether, and if so in what circumstances, the respondent could apply to continue receiving the pension payment beyond the 13 week period.
[2] T document, T3 page 13.
8. The respondent returned to Greece on 12 September 2008.
9. On 30 October 2008 the respondent apparently telephoned the applicant seeking advice on the portability of his DSP. A Departmental note records that, ”…the customer [the respondent] has been provided with advice only about a portability, and no decision has been made…”.[3] The notes seems, but it is by no means clear, to indicate that an information package on portability was sent to the respondent. Among other things the record states:
“[Customer went] to Greece with his mother to say with family, Mother has ALZ and wants to stay in Greece, Mother on age and can stay 26 wks and then go proportional (only has 33 mnths awlr). Customer states he needs to stay and look after her, but there is other family in Gr who is also taking care of her. I told customer that we would not grant an extension for him to stay and look after his mother because she wants to stay there. Customer said she has been in AU a long time and has the right to stay overseas longer. I told him about the legislation. Told customer that his mother has 26 weeks but he only has 13 weeks. He said other family are also looking after mother. No new medical event has occurred to prevent them from returning to au other than that mother wants to stay”[4].
[3] T document, T19 page 88.
[4] T document, T9 pages 88-89.
The record does not disclose that the respondent was given any verbal advice concerning portability other than his entitlement extends for a period of 13 weeks. There is no evidence noting the date any material may have been sent, the address to which it was sent or whether the respondent in fact received the information.
10. Dr V Toustsoglou, the Director of General Medicine at the Dramas General Hospital certified that as at 2 December 2008, the respondent’s mother was suffering from “ALZHEIMER’s Condition with Psychotic Syndrome” and that she needed assistance of a second carer and could not travel overseas. [5]
[5] T document, T9 page 29.
11. On 9 December 2008 the respondent returned to Australia.
12. After the respondent’s return to Australia, his mother was admitted to hospital on 16 December 2008 having broken her right hip. Dr D. Evangelidis, an orthopaedic surgeon, certified her as also suffering age related dementia and pneumonic consolidation.[6]
[6] T document, T9 page 30.
13. On 28 December 2008 the respondent returned to Greece.
14. On 12 January while still in hospital Dr E Patelaros, a psychiatrist, opined that the respondent’s mother was suffering advanced dementia, was bedridden and incapable of caring for herself.[7]
[7] T document, T9 page 31.
15. On 15 January 2009 the respondent’s mother was discharged from hospital.
16. On 29 March 2009 the respondent’s DSP was stopped.[8]
[8] T document, T5 page 19.
17. At sometime prior to 16 July 2009 the respondent requested an extension of the time in which his DSP would continue to be paid beyond the 13 week period. On that day the applicant wrote to him refusing his request.[9] The refusal was based on the fact that his mother was hospitalised prior to his departure from Australia.[10]
[9] T document, T6 pages 21-22.
[10] T document, T6 page 21.
18. The respondent was unsuccessful in having the refusal overturned after internal reconsideration.[11]
[11] T document, T10.
19. The respondent successfully appealed to the SSAT which decided that his DSP pension should continue to be paid in the period following 29 March 2009.
20. A medical report from Dr G. Nanos-Domnidis, a neurologist who examined the respondent’s mother, which the parties agree was issued on 23 November 2009, opines that she is suffering from the terminal stages of Alzheimer’s disease.[12]
[12] T document, T16 page 60.
The Law
21. Section 1218C of the Act provides discretion for the Secretary to extend the period beyond the 13 week period generally permitted for continuation of a pension payment when the recipient has travelled outside Australia. The relevant part is as follows:
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:
…
(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;
…
(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; …
The Submissions
(a) the applicant
22. It was submitted on behalf of the Department that when the respondent sought an extension of his DSP in December 2008, the event preventing his return to Australia did not occur during his absence from Australia, that is, the need of his mother for care. His mother’s condition deteriorated from November 2008. The need for care is the relevant factor which happened prior to his seeking an extension of the portability. The Department relied on the Tribunal’s decision in Manolev and the Secretary, Department of Family and Community Services[13].
[13] [2005] AATA 398.
(b) the Respondent
23. Counsel for the respondent submitted that a broader interpretation of s 1218C of the Act was warranted. She stated that the words “unable to return” in s 1218C(1) of the Act should be construed to include a situation in which, even though the applicant for an extension can physically return to Australia, the family member is unable to return. Here, there was medical evidence that as of the 12 December 2008, the mother was unable to travel and she required the assistance of two carers. Counsel submitted that the term “event” in s 1218C(2) of the Act is not limited to an emergency. As the section provides for the exercise of a discretion, there is a need to extend the interpretation of it. The definition of “to occur” includes to appear, to present and to take place. So, when the respondent made his third trip to Greece, his mother’s condition began to be a continuing serious illness. Counsel relied on the Tribunal’s interpretation of “events” in Morched and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[14].
[14] [2009] AATA 584.
Consideration
24. The decision under s 1218C of the Act to continue the payment of a benefit beyond the period permitted when a social security recipient is overseas is discretionary. The discretion can only be exercised because one of the events set out in the section renders the recipient unable to return to Australia. The events nominated fall into two broad categories. The occurrence may render it physically impossible for the recipient to return to Australia, for example, hospitalisation, the occurrence of a natural disaster or political or social unrest or war. There are other circumstances less well defined when, because of grief or the need to provide support, the recipient may be physically able to return but there may be an expectation that, in ordinary course of human affairs, the recipient may not be expected to return, such as following the death or serious illness of a relative abroad. This was acknowledged by the Tribunal in Morched, when Member Dr J D Campbell stated[15],
“…I am satisfied that the set of circumstances outlined in respect of his [the applicant’s] sister’s illness and death would constitute events which culminated during his period of absence and, from the point of view of a reasonable person, would have been significant in his inability to return to Australia”[16].
[15] [2009] AATA 584.
[16] Ibid at paragraph 25.
If he is to succeed the respondent’s circumstances must fall within this latter category.
25. In Manolev, the Tribunal stated that the use of the word ”events” in s 1218C of the Act “means a specific identifying incident and not something which came on gradually”.[17] This Tribunal is unable to accept that limitation, which does not appear in the words of the section and there is no reason to read down the words used. As is apparent from the terms of s 1218C(2)(a) of the Act, the event must have ‘occurred’ or ‘began’ during the period of absence. For an illness to occur, this includes a condition manifesting itself. Among the meanings attributable to the verb ‘to occur’ are ‘take place, befall, happen’,[18] and it in this sense that the noun “event” in s 1218C(2) of the Act should be understood.
[17] Ibid at paragraph 28.
[18] Concise Oxford Dictionary.
26. There is no doubt the respondent’s mother was aged and frail when she went to Greece on 28 May 2008. She was then in need of the services of a carer. While there is no medical evidence to support such a finding, the Tribunal accepts that she may, as part of that frailty, have been suffering Alzheimer’s disease. She was however fit enough to undertake the journey to Greece.
27. By 2 December 2008 the respondent’s mother was certified as being unable to travel and as requiring the services of a second carer. The Tribunal regards that medical assessment as representing an appreciable deterioration of her condition as clearly in May of that year she had been able to travel overseas, albeit with assistance. Moving from a state at which a person is able to travel overseas to one at which that is no longer possible, and no new condition is mentioned, is indicative of a deterioration in the person’s condition. Similarly the need to increase the number of carers required to look after her is indicative of her deterioration. As at 2 December 2008, it was reasonable to conclude, and the Tribunal does agree, that her condition had changed from one in which she was merely old and frail with Alzheimer’s disease to one in which she had become seriously ill as the result of that disease.
28. On 16 December 2008, his mother fell and broke her right leg. She was admitted to hospital. Prior to her discharge, Dr Patelaros, a psychiatrist, certified her as suffering advanced dementia and that she was bedridden. This all occurred while the respondent was in Australia. He returned to Greece on 28 January 2009 where he has remained caring for his mother since.
29. The Tribunal accepts that the applicant’s two return trips to Australia from Greece in 2008 were made in order to secure a continuation of the payment of his DSP. He was however outside Australia at the time, in early December 2008, when the Tribunal is satisfied his mother’s condition deteriorated and she became seriously ill. It would be harsh and unreasonable if his return to Australia for the period between 9 December and 28 December 2008, in order to secure the continued payment of his benefit should act to disqualify him from receipt of the benefit if he is otherwise entitled, given that:
(a)it is unclear whether he had been advised of the circumstances which may give rise to approval of portability,
(b)the subsequent medical evidence that his mother’s condition had worsened was forthcoming, and
(c)he was advised that an application to have the portability approved would not be successful..
30. It is now clear that his mother’s condition is in a terminal stage. Sensibly, s 1218C of the Act does not require a set date to be nominated. While in a number of the circumstances set out in the section it could be expected that the additional time would be likely to be of short duration that is not necessarily the case. A person suffering from a serious illness may remain in that state for a lengthy period of time and be unable to travel to Australia. Likewise, a person detained as the result of an outbreak of war or civil unrest may remain in detention for years. There is no reason to read the terms of the provision down by imposing an arbitrary or, indeed, any limit.
31. For the above reasons the Tribunal affirms the decision of the SSAT that the respondent is entitled to a continuation of the payment of his DSP from 29 March 2009.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Signed: ..........(sgd D D DeAndrade)......................
D. De Andrade Personal AssistantDate of Hearing 15 April 2010
Date of Decision 30 April 2010
Counsel for the Applicant Ms S. Marks
Solicitor for the Applicant Lander & Rogers
Solicitor for the Respondent Ms A. Bramley, departmental advocate
0
2
0