Sleeman; Secretary, Department of Families, Community Services and Indigenous Affairs and

[2007] AATA 1913

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1913

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V 200401085

GENERAL  ADMINISTRATIVE  DIVISION

)

Re

SECRETARY,

DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And SAM SLEEMAN (AKA SAMIR SLEIMAN)

Respondent

DECISION

Tribunal Regina Perton, Member

Date1 November 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Sleeman is not entitled to payment of disability support pension after 23 February 2004.

(sgd) Regina Perton

Member

SOCIAL SECURITY – disability support pension – living overseas – exceeded time limit for portability – nature of condition – whether prevented from returning to Australia – limited circumstances for ongoing portability - decision set aside 

Administrative Appeals Tribunal Act 1975 ss 37,40(1)(b)

Social Security Act 1991 ss 23(4B), 1213A, 1218AA, 1218C

REASONS FOR DECISION

1 November 2007 Regina Perton, Member    

1.       Sam Sleeman, who was born in Lebanon, arrived in Australia in March 1991 when he was 24 years old.  Mr Sleeman suffers from asthma which apparently first manifested itself within two years of his arrival in Australia.  His asthma has affected his ability to work.  On 24 December 1998, Mr Sleeman was granted disability support pension (DSP).  Mr Sleeman returned to Lebanon on 2 July 2000 and retained payment of the DSP.  At that time, social security legislation allowed a DSP recipient to continue to receive payments for a year after leaving Australia.

2.       Mr Sleeman returned to Australia on 23 May 2001 and then went back to Lebanon on 29 June 2001.  He next arrived in Australia on 26 June 2002 and left for Lebanon again on 6 July 2002.  Centrelink advised Mr Sleeman before his departure that he would be paid DSP only until 6 July 2003 if he remained overseas.  Centrelink administers DSP for the Secretary of the Department of Families, Community Services and Indigenous Affairs (the Secretary). 

3.       Mr Sleeman did not return to Australia within the allowable 12 month period, seeking several extensions of his payments on the basis that he was not fit to travel to Australia.  He provided medical reports to Centrelink dated 1 July 2003, 19 July 2003, 15 August 2003, 3 November 2003 and 23 December 2003 in which his treating doctor, Dr M Matar, indicated that Mr Sleeman was unfit to travel to Australia due to an exacerbation of his asthma.  As a result, Centrelink extended Mr Sleeman’s DSP payments on four occasions. 

4.       In a letter to Mr Sleeman dated 6 January 2004, confirming an extension of DSP payments until 23 February 2004, Centrelink informed him that if he sought yet a further deferral of his return to Australia, he had to provide a full medical report from an independent medical practitioner. The report would need to include an explanation as to why his asthma prevented Mr Sleeman from returning to Australia.

5.       On 24 February 2004, Centrelink stopped paying DSP to Mr Sleeman.  After that decision, Centrelink received a further request from Mr Sleeman for an extension of DSP payments.   He provided medical reports, dated 17 February 2004 and 12 March 2004, from a specialist, Dr C Youakim.  In the reports Dr Youakim indicated that Mr Sleeman suffered from regular, recurrent asthma attacks and required medical treatment and close monitoring.  Dr Youakim stated that Mr Sleeman could not travel to Australia at that time. 

6.       On 31 March 2004, an authorised review officer of Centrelink (ARO) affirmed the decision. 

7.       On 28 June 2004, Mr Sleeman applied to the Social Security Appeals Tribunal (SSAT) for a review of the decision.   On 17 August 2004 the SSAT set aside the decision under review, finding that Mr Sleeman was suffering from a serious illness that prevented him from returning to Australia and directing that the payment of DSP should be restored.

8.       On 22 September 2004, the Secretary lodged an application for review with the Tribunal on the basis that the SSAT had erred in its interpretation of the relevant legislation. 

9.       The issue before the Tribunal is whether Mr Sleeman was entitled to ongoing payments of DSP after 23 February 2004.

LEGISLATION

10.     When Mr Sleeman was granted DSP, the legislative provisions concerning the portability of benefits overseas were more lenient than they were by the time the decision under review was made.    

11. Section 1213A of the Social Security Act 1991 (the Act) (since repealed) applied to Mr Sleeman.

1213A(1)  Subject to subsections (2) and (3), a person's right to continue to be paid disability support pension is not affected by the person's leaving Australia.

1213A(2)  If:

(a)a person is receiving a disability support pension granted on or after 12 November 1991; and

(b)the person leaves Australia on or after that day; and

(c)the Secretary decides that the person is not severely disabled when leaving; and

(d)the person continues to be absent from Australia for a period of 12 months;

the person ceases to be qualified for disability support pension on the day after the 12 month period ends.

1213A(3)  If:

(a)a person is receiving a disability support pension granted on or after 12 November 1991; and

(b)the person leaves Australia on or after that day; and

(c) the person is severely disabled when leaving; and

(d)the Secretary decides that the person has ceased to be severely disabled; and

(e)the person continues to be absent from Australia for a period of 12 months after the decision;

the person ceases to be qualified for disability support pension on the day after the 12 month period ends.

12.     On 20 September 2000, legislative amendments to the Act shortened the period of portability to six months.  However, existing recipients of DSP who were overseas on 20 September 2000 were able to retain a 12 month portability period; provided they did not return to Australia for a period exceeding 26 weeks.  Mr Sleeman was overseas on 20 September 2000 so he was entitled to that concession.  His last departure from Australia, prior to the cessation of DSP payments on 24 February 2004, was on 6 July 2002.  Had Mr Sleeman not been granted extended portability to 23 February 2004, his DSP payments would have ceased on 5 July 2003.

13.     The current legislation applicable is as follows:

1218AA(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.

1218AA(2)      The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.

1218AA(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.

…

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.

14.     The definition of severely disabled in s 23(4B) of the Act is as follows:

23(4B) For the purposes of this Act, a person is severely disabled if:

(a)a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

(i)        to work for at least the next 2 years; and

(ii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(b)       the person is permanently blind.

15.     Part 7 of the Guide to the Social Security Law prepared for use of Centrelink staff provides a convenient summary of the portability provisions relevant to this matter: 

…

Development of portability legislation

Since general portability of Australian pensions began in 1973, there have been a number of important changes including:

…

·limiting the portability of DSP from 12 November 1991,

…

·introducing standardised and simplified portability rules - giving most payments up to 26 weeks of portability for temporary absences - from 20 September 2000, and

·introducing a savings provision for some pension customers from 20 September 2000 to enable them to continue under pre 20 September 2000 conditions until they return to Australia for a period of greater than 26 weeks.

Portability rules introduced on 1 July 2004

From 1 July 2004 generally all payments are portable for up to 13 weeks (for most payments, only for temporary absences). Specific conditions must be met for some payments. This includes severely disabled DSP customers who previously had unlimited portability.

The 13 week portability period is subject to continuing qualification for the payment and nothing in the portability rules confers a right on a customer to continue to be paid if the customer is not qualified for the payment (section 1212D). This means that qualification for the payment overrides any portability provisions.

Portability is defined in terms of payability, i.e. as long as a person qualifies for a payment the payment can be paid for temporary absences of up to 13 weeks...

…Terminally ill DSP customers, who are severely disabled, may also have unlimited portability for permanent departures…

Provisions introduced on 20 September 2000 (continue to apply from 1 July 2004)

If extreme circumstances beyond the customer's control arise after departure and prevent a customer, who has a limited portability period, from returning to Australia the portability period may be extended under the Secretary's discretionary waiver power. 

A pension granted to a former resident who resumes Australian residency is not portable for the first 24 months following their resumption of residence in Australia. There is NO discretionary power to allow for portability in this period.

…

General savings provisions introduced on 1 July 2004

Customers overseas immediately before 1 July 2004 are subject to the rules under which they departed until they return to Australia.

Example: A PP customer given 26 weeks' portability on 14 June 2004 can continue with that absence. However, any absence starting on or after 1 July 2004 will be under the new rules (generally 13 weeks). 

…

20 September 2000 savings provision (continues to apply from 1 July 2004)

… 

DSP customers granted on or after 12 November 1991 who are not severely disabled… may still have their 20 September savings provision (allowing them 12 months of portability) for absences that commenced prior to 1 July 2004. These customers were overseas immediately before 20 September 2000 and have not since returned for more than 26 weeks although they have returned every year for a short period to ‘renew' their 12 months' portability period. Once these customers return to Australia this savings provision will be lost and they will generally be limited to 13 weeks' portability for any departure commencing on or after 1 July 2004.

…

Procedural Difficulties

16.     This application has been fraught with procedural difficulties.  These arose out of a range of factors which included Mr Sleeman’s health and his location in Lebanon.  The Tribunal set down a number of hearing dates and aborted two hearings due to Mr Sleeman’s apparent respiratory difficulties.  The Tribunal then attempted to conduct the matter by sending questions by email.  Unfortunately, there were difficulties in Mr Sleeman accessing his email due to illness and his reliance on using computers at internet cafes.  The Tribunal eventually received responses to its questions sent to him by email.  However, no answers were received to cross-examination questions put by the Centrelink advocate, which the Tribunal forwarded by email to Mr Sleeman.  Mr Sleeman insisted that he had responded but was unable to provide copies of those emails.  The conflict with Israel then resulted in further delays.  

17. A telephone hearing on 25 October 2006 was adjourned when Mr Sleeman indicated during cross-examination that he no longer had any of the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and hence could not comment on their content. He stated that he had mislaid all documents concerning the case during the conflict. The documents were too bulky to send by email so Centrelink undertook to send them by air freight. Mr Sleeman said he would provide the Tribunal with an address for delivery of fresh copies of the 100 plus pages of documents by air freight; but he failed to do so despite a number of reminder emails and attempted telephone calls by Tribunal staff.

18.     By late July 2007, there had not been any telephone or email response from Mr Sleeman for some time. A telephone hearing was scheduled for 21 September 2007.  Mr Sleeman was notified of the hearing by a letter dated 31 July 2007 and sent to his last known address in Lebanon, as well as by an email from the Tribunal officer who has been involved in this matter throughout its duration.  Mr Sleeman did not respond to the request to confirm his availability.

19.     On 21 September 2007, the Tribunal attempted to telephone Mr Sleeman to enable him to participate in the hearing.  Two calls were made to each of the telephone numbers given to the Tribunal by Mr Sleeman over the previous years.  He did not answer at the designated time (which, for Mr Sleeman’s convenience, was late afternoon in Melbourne but morning in Lebanon).  Female voices answered on all the numbers stating either that it was a wrong number or hanging up abruptly.  There has been no further communication from Mr Sleeman to date. 

20. The Tribunal is satisfied that it has afforded Mr Sleeman sufficient opportunities to provide further evidence and responses to Centrelink’s questions. Section 40(1)(b) of the AAT Act empowers the Tribunal to proceed with its review in the absence of a party who has had reasonable notice of the proceeding. The Tribunal believes it appropriate to do so in this matter.

EVIDENCE

21.     The Tribunal was provided with medical reports and occupational assessments dating back some 15 years.  In a report dated 10 November 1992, prepared in relation to a Sickness Allowance Review, Dr A Wassouf indicated that his patient suffered from asthma, which was likely to persist for at least the next two years, and from temporary knee pain.  He was of the opinion that his patient would be unfit for work for the following six months.  At that stage, Mr Sleeman had not yet worked in Australia.   

22.     On 4 June 1993, in another Sickness Allowance Review, Dr Wassouf stated that Mr Sleeman has had asthma for years and he has been having acute attacks frequently.   In a medical certificate dated 5 July 1993,  Dr Wassouf described his patient as suffering from asthma with frequent acute attacks.    

23.     On 27 August 1993, Dr A Mead of the Australian Government Health Service (AGHS) examined Mr Sleeman and commented  on his work capacity:

26 y.o. teacher who injured his right knee in early 1992. This has recovered sufficiently following surgery 2 months ago to allow light to moderate work.  He also has a history of asthma for about a year and a half.  Although he has exacerbations of moderate wheezing he should be capable of light work.  Vocational assistance may be useful in view of his educational and language skills.

24.     A medical report by his then treating doctor, Dr V Di Maria, dated 5 April 1996 indicated that Mr Sleeman suffered from unstable asthma.  Dr Di Maria indicated that Mr Sleeman was suffering from a life long condition.   It was Dr Di Maria’s opinion that Mr Sleeman would be likely to be able to work full-time some three months later.  Mr Sleeman stated in related documentation that he had last worked in March 1996, for the Maribyrnong City Council.    

25.     In a Treating Doctor’s Report dated 20 August 1996, Dr Di Maria stated that Mr Sleeman was still suffering from asthma-unstable, he was seeing a specialist and would be likely to be able to work in about 6 to 12 months.   In a Treating Doctor’s Report dated 11 March 1997, Dr Di Maria reported that Mr Sleeman’s asthma was still unstable and he would be unfit for work until 23 May 1997. The doctor commented that Mr Sleeman was likely to be able to work in 6 to 12 months.   

26.     In a Treating Doctor’s Report dated 2 September 1997, Dr Di Maria stated that the medication taken by Mr Sleeman did not affect the patient’s ability to work but that his asthma was still not controlled:

We have been finding it difficult to control Sam’s Asthma – being seen and investigated at Alfred Hospital – Lung function studies, allergy tests etc.

27.     In a Treating Doctor’s Report dated 17 March 1998, Dr Di Maria reported that Mr Sleeman was asthmatic – poor lung function.   The doctor estimated that Mr Sleeman would not be able to work for at least 12 months.   

28.     On 18 April 1997, Dr L Pascal of AGHS provided the following report:

30 year old person who arrived in Australia in 1991.  He began suffering from asthma 2 to 3 years after he arrived.  His condition deteriorated in early 1996.  He has been attending the Alfred Hospital as out-patient for some time, without reporting much improvement.  He has now been referred to another specialist in the MMC [Monash Medical Centre], where he is due to attend within the next few weeks.

The person is observed to be breathless at rest during the interview.

Because the person’s condition is disabling, needs active treatment and has not stabilised, the person is considered temporarily medically unfit for all employment.

29.     In late December 1998, Mr Sleeman applied for DSP.  On 20 January 1999, Dr W Beynon of Health Services Australia (HSA) provided the following assessment, which resulted in the grant of DSP to Mr Sleeman:

This 32 year old man ceased work in 1996 due to medical reasons.

He suffers from severe asthma, which has been unstable.  He has been investigated at the Alfred Hospital and his condition may be related to allergies and exercise.  However despite appropriate medications, including nebulizer therapy and oral steroids, his asthma is difficult to control and he is still having frequent attacks of wheezing and shortness of breath.

He presented as a distressed young man who was wheezing and was severely short of breath today.

Given the available information and presentation, due to his frequent attacks of asthma, he is unlikely to be able to cope with full-time work in the next 2 years.

30.     In a report dated 3 November 2003, Dr Matar, Mr Sleeman’s treating doctor in Lebanon, indicated that:

…Mr Sleeman is still suffering from asthma exacerbation not relieved by standard medication for which he cannot travel for the coming 6 to 8 weeks.

31.     In a report dated 23 December 2003, Dr Matar stated that his patient was still having frequent asthmatic attacks for which he is uncontrolled…   

32.     Dr Youakim, a specialist pneumologue, prepared reports dated 17 February 2004 and 12 March 2004.  In the latter report, he stated:

This is to certify that Sam Sleiman is suffering from regular recurrent asthma attacks and is on medical treatment and needs to be closely watched.  Therefore, he cannot take a long trip the time being before being stabilised. (The trip to Australia is a long one) and could be risky.  The duration of treatment is 6 – 8 weeks.

33.     In a further report, dated 26 July 2004, Dr Matar confirmed that Mr Sleeman was still being treated for asthma and that it had been poorly controlled for the previous two months.

34.     Mr Sleeman returned to Australia on 7 November 2004. On 25 November 2004, Mr Sleeman was examined by Dr A Chara of HSA at the request of Centrelink.  Dr Chara’s medical report, prepared that day, was as follows:

Mr Samir Sleiman is 38 year old man who was assessed for the portability of the disability support pension.  This assessment was based on a face to face interview and examination and review of past reports and assessments. 

Medical problem:

Severe asthma – this is a longstanding problem.  During the assessment, Mr Sleiman appeared to have an abnormally high respiratory rate of 28 with an audible wheeze.  The wheeze was confirmed on auscultation along with decreased air entry.  When questioned, Mr Sleiman said that this presentation was normal for him.  He is on numerous medications and has been steroid dependent for the last 3 years.  The medications he is on are readily available in Australia.

It is interesting to note that he apparently flew into Sydney this morning and has booked himself to fly to Lebanon in 3 days.  If his symptoms are actually as severe as he seemed then he should not have been in any condition to travel, nor will it be safe for him to undertake a long journey in the near future.  Given the inconsistency between his clinical presentation and his history, I believe it would be appropriate for Mr Sleiman to have a respiratory review prior to making any further decision. 

Recommendation:

Further medical examination by a respiratory physician is required.  Therefore no further comment can be made regarding appropriate interventions.

35.     Centrelink made an appointment for Mr Sleeman to attend a respiratory physician on 8 December 2004; but Mr Sleeman  left Australia on 3 December 2004.  As far as the Tribunal is aware, he has not returned since.  No further medical reports have been provided by Mr Sleeman since that date.  He has indicated that his illness continues and that he has been on medication.

36.     On 19 September 2004, the Tribunal sent a number of questions to Mr Sleeman accompanied by a copy of the relevant legislation.  On 17 October 2005, Mr Sleeman sent answers to questions.  The questions and answers are set out below: 

…

2.  You were granted a disability support pension (DSP) in 1998 on the basis of your severe asthma and poor lung function.  Do you still suffer from the same conditions?

Yes

3.  What is the medical condition that has prevented you from returning to Australia?  Is this a different illness from the one for which you were granted DSP ie asthma?

Aggravated and chronic case of asthma; my asthma has become extremely uncontrollable with no pattern of attacks while being overseas; I used to be able, by undertaking treatments and avoiding certain allergy triggers, to sort of keep myself within the safety zone but this is no longer the case and the doctors have been recommending strongly not to take any flight before being stabilized for at least few weeks because of the high probability that I would suffer from an acute attack that put my life in danger and no one could help me on board of the plane. 

4.  You returned to Australia on 27 June 2002; but you left again 9 days later on 6 July 2002.  Why did you stay in Australia for such a short time? 

As I recall, I planned back then, on staying in Melbourne but recurring severe asthma attacks that hit me upon arrival left me so weak and unable to look after myself; I even couldn’t look around for a place to rent that I could live in; one of the major Asthma attacks symptoms is leaving the person short of breath which affect the ability of walking, talking and even taking the easiest physical activities; all you could do is take extra doses of medications and try to rest hoping that you would get a bit of relief and get rid of the suffocating symptoms you’re going through (even checking into a hospital won’t really help; all what could be done is administering oxygen pumps and some relievers then I would be discharged and asked to check with my doctor); so I decided to leave again because back in Lebanon I have my mother to stay with and look after me.  

5.  On your next return to Australia on 7 November 2004, you saw a doctor from Health Services Australia, who then asked you to see a respiratory physician on 8 December 2004.  You left Australia on 3 December 2004.  Why did you not stay a few days longer and see the respiratory physician?

First of all, upon my return to Australia I let Ms Navarro know that I had a return ticket  because I was undergoing a treatment in Lebanon and left against my doctor’s advice since he wanted to follow me up closely and run a series of tests within 3 weeks otherwise the treatment I’ve been subjected to would’ve been useless; secondly I asked relatives and friends to stay with them for a certain time and then asked to stay for a bit longer to take the first doctor examination… and when asked to see another specialist, I did ask for an earlier appointment which Ms Navarro claimed it couldn’t be managed despite the fact that on my first medical examination I was told by the doctor that it was obvious that I suffer from asthma  and couldn’t work at all (I made a huge effort to attend the appointment as I was very ill, I asked a friend to accompany me and while there I suffered from a very strong attack which had the staff there ask the doctor to see me right away as I couldn’t wait any longer); thirdly, while staying in Australia I was denied a pensioner or health concession card because Centerlink couldn’t take the decision to give me one before settling my case with AAT; I couldn’t afford to get even the regular puffers and medication that I have finished (even though on one occasion while I was at Centerlink, asking them to give me a temporary health care card to get my medication, my asthma got so bad that the customer officer or manager insisted on calling the ambulance which I refused because I was so furious about how they treated me and told him that I will hold him responsible if my health deteriorates any further; (I will provide you with names and witnesses if required); Finally, before I left, I received a phone call from Lebanon that my mum was so sick and she might need to be hospitalized; she was suffering from agonising stomach pains and she had no one staying with her.  I had to leave in a hurry and couldn’t let Ms Navarro know before I left because I had to take, as I recall, the first night flight I found; but I did contact her as soon as I arrived and told her what happened and in what poor health conditions I arrived; I almost had to make a stopover in Singapore because the crew realized how bad I was but I knew I couldn’t afford staying anywhere  and I had to push myself)

6. If your inability to return to Australia is due to your asthma, as your doctors’ reports appear to indicate, please explain how that fits in with section 1218C(2) (see below) which requires the illness to have occurred after you left Australia.

The stages of uncontrollable & unstable asthma occurred after I had left Australia and it developed into a life threatening disease with no patterns of frequency; otherwise, I would have been able to make the flight and come back, as I used to do, within the twelve months portability period and then leave again; I tried to make the flight on many occasions but when I used to think that I had been stabilized for few days I had setbacks and had to undergo other treatments, that include high doses of cortisones, nebulizers, puffers… and many tests, that would leave me extremely weak and unable to look after myself; moreover, if I had been asked to provide Centerlink with proofs of flight reservation slips I would have done it but on many occasions as I was talking to Centerlink officers i used to sense a bit of an aggressive attitude with no intention of showing me the right way to prove my genuine case.

7.  Do you think any of the other sections about portability of pension (that is the ability of the pension to be transferred) reprinted below apply to you?

I don’t know if I got this question right, whether you’re asking me if I’m familiar with any other sections than the ones you provided me with; well the only sections about portability of pension I know of are the ones you provided me with and I do think that they apply to me.

8.  In paragraphs 5 to 12 of the Respondent’s Statement of Facts and Contentions, Ms King describes another circumstance where persons who were classified as severely disabled could get a longer extension of DSP overseas.  Do you have any comments on the issues she raised in those paragraphs?

From what I gathered the main issue in those paragraphs is about the ability of working for 8 hours or more, therefore the person is not to be considered severely disabled; to this, I say how possibly I could work when I’m all the time short of breath, feeling weak and exhausted, unable to sleep through the night because there is not one night that I don’t have to wake up either because I’m suffocating or have to take my medication; (then on a good night and if not feeling any worse I have to stay up for a long time because of the medication effects that leave me shaken); on top of all the exhaustion, inability of taking care of many daily life necessities (I even sometimes can’t talk over the phone to ask for assistance because I’m short of breath); how could I work when I have no control whatsoever on the timing of my asthma attacks; I am used by now to the fact that I have to restrict myself to minimum plans and activities because even though I’m taking my medication I could have a severe life threatening asthma attack anytime .

…

37.     Centrelink was invited to provide comments on Mr Sleeman’s answers.  It was also invited to provide questions to Mr Sleeman, by way of cross-examination.  On 26 October 2005, Ms Navarro provided the comments and the questions.  She disputed several of Mr Sleeman’s assertions and memories about the timing and location of the medical appointments; she denied having suggested he should attend a Preliminary Conference in Melbourne in person and had in fact said the opposite; and denied that she had discriminated against him and pointed out the ways in which she had adhered to the Commonwealth Model Litigant Policy.  There were 20 questions posed by way of cross-examination in the same document.  These were sent to Mr Sleeman on more than one occasion.  However, despite Mr Sleeman having stated that he had sent responses to these questions, neither the Tribunal nor Centrelink has received them.  As was pointed out above, the cross-examination questions were not answered at the abandoned hearing on 25 October 2006, the scheduled hearing on 21 September 2007 or in writing since their initial despatch on 31 October 2005.

DISCUSSION AND FINDINGS

38.     As a person who was overseas on 20 September 2000, when amendments concerning portability of DSP came into force, Mr Sleeman was entitled to a longer period of payment while outside Australia than persons who were not overseas on that date.  He was entitled to payment for a year after he had left Australia.  If he returned to Australia for less than 26 weeks once a year and remained qualified for DSP, he was entitled to continue his DSP payments while living overseas for another year. 

39.     Mr Sleeman did not return to Australia within a year of his departure on 7 July 2002.   Centrelink extended his payments of DSP presumably under the provisions that existed before further amendments to the Act during 2004. 

40.     The decision under review in this case is Centrelink’s decision to stop payments of DSP as from 24 February 2004.  The Tribunal is not reviewing the earlier decisions to extend portability of DSP. 

41. Section 1213A of the Act allowed persons in Mr Sleeman’s situation to extensions of the portability period beyond the one year period if they were severely disabled when granted DSP in Australia.  The term severely disabled was defined in s 23(4B) at all relevant times. That definition provided that the person must be totally unable to work for at least the following two years and also be unable to benefit from participation in a program of assistance or a rehabilitation program. There is no evidence before the Tribunal that Mr Sleeman was unable to participate in such a rehabilitation program. The test as to whether someone is severely disabled is a far more stringent test than that for the grant of DSP. The Tribunal is not satisfied that Mr Sleeman meets the definition in the Act of severely disabled.

42. Section 1218AA in the current Act allows for the portability of DSP for an unlimited period if a person is, amongst other things, severely disabled and terminally ill, along with a number of prescribed circumstances.  While Mr Sleeman has suffered from asthma for a number of years, he does not have a life expectancy of less than two years, so his condition does not qualify as a terminal illness.  Therefore, this provision does not assist Mr Sleeman; even if his illness had met the definition of severely disabled. 

43. Section 1218C of the Act allows for the extension of the portability period in certain circumstances. Section 1218C(1) refers to a number of prescribed circumstances which includes a serious illness of the person. However, each of the circumstances set out in s1218C(1) are qualified by s1218C(2) which states that the Secretary (or the Tribunal) must not extend the person’s portability period unless the event occurred during the period of absence.  The evidence indicates that Mr Sleeman was already suffering from asthma, which was often uncontrolled, in the early 1990s.  The serious illness suffered by Mr Sleeman did not begin during his period of absence from Australia.  Mr Sleeman suffered from the condition before leaving Australia.   The medical reports he provided from the Lebanese doctors bore a strong similarity to those of his Australian doctors prior to the grant of DSP. 

44.     The Tribunal does not believe it could have come to a different decision, even if Mr Sleeman had provided further evidence, given the nature of his condition and the relevant legislation.

DECISION

45.     The Tribunal sets aside the decision under review and substitutes a decision that Mr Sleeman was not entitled to payments of DSP after 23 February 2004.

I certify that the forty-five [45] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)      Lauren Spragg

Dates of hearings:  19 April 2005, 25 October 2006, 21 September 2007
Date of decision:  1 November 2007
Advocates for applicant:               Ms K Navarro, Centrelink Legal Services Branch
  Mr P Mentor, Sparke Helmore
Advocate for respondent:         Self - represented