Tonkin and Secretary, Department of Social Services (Social services second review)

[2023] AATA 943

Tonkin and Secretary, Department of Social Services (Social services second review) [2023] AATA 943 (27 April 2023)

Division:General Division 

File Number(s):2020/6920      

Re:Robyn Tonkin

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date:27 April 2023

Place:Brisbane

The decision under review is affirmed.

..........................[SGD]............................

Senior Member R Bellamy

Catchwords

SOCIAL SECURITY – suspension of Disability Support Pension for being outside Australia – length of portability period – whether discretion to extend period on the basis of recipient’s medical conditions, COVID pandemic or ill health of a parent

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

REASONS FOR DECISION

Senior Member R Bellamy

27 April 2023

ISSUES AND RELEVANT LAW

1. Ms Tonkin is a citizen of New Zealand who normally resides in Australia. She received the disability support pension (“DSP”) from October 2007 to 30 June 2020 except for some periods when her payment was suspended because she had been outside Australia for longer than the permitted period (“portability period”). In recent years she spent a lot of time in New Zealand due to her parents’ poor health.

2. Ms Tonkin’s father passed away in in August 2019. On 4 February 2020, she travelled to New Zealand to help care for her mother. She was still in New Zealand on 1 July 2020 when Centrelink determined that her portability period had ended and suspended her DSP payments. She had stayed partly to care for her mother and partly because of the limitations on air travel due to the COVID pandemic and her fear of having to go into hotel quarantine upon arrival in Australia. The issue for determination is whether there was any basis to extend the portability period beyond 1 July 2020 so that Ms Tonkin’s DSP would have been payable beyond that date.       

3. Part 4.2 of the Social Security Act 1991 (“the Act”) deals with portability of social security payments. Under s 1215 of the Act, a social security payment is not payable for any period that a person is absent from Australia after the end of the portability period. Section 80 of the Social Security Administration Act 1999 provides that a person’s social security payment may be suspended or cancelled if the Secretary is satisfied that a payment is not payable to them. Section 1217 provides that the maximum portability period for disability support pension is generally a total of 28 days (whether consecutive or not) of temporary absence from Australia in the last 12 months, ignoring days on which the person was not receiving disability support pension. The Act provides for the portability period to be extended in some circumstances.

4. While Ms Tonkin was in New Zealand, Australia and New Zealand each imposed tight restrictions on international travel due to the COVID pandemic. Ms Tonkin’s portability period was extended until 30 June 2020. The Respondent indicated that this was a blanket approach that was taken on the basis that the pandemic was a natural disaster.

5. On 1 July 2020, Ms Tonkin was still in New Zealand and Centrelink suspended her DSP. On 14 August 2020 Centrelink declined a request to further extend her portability period. She requested a review and on 10 September 2020 an authorised review officer affirmed the decision. On 16 September 2020, Centrelink cancelled Ms Tonkin’s disability support pension with effect from 1 July 2020. Ms Tonkin sought review of the decision in the Social Services and Child Support Division of this Tribunal (“SSCSD”) and the decision was affirmed on 7 October 2020. Ms Tonkin applied for review of that decision to the General Division of the Tribunal.

6. The previous decisions focussed on Ms Tonkin’s representations about the availability of flights, her anxiety and her reluctance to undergo hotel quarantine due to her anxiety. However, her reluctance to leave her very ill mother was also a big factor. In 2019 she had provided Centrelink with information about her parents’ medical conditions which was dismissed in a rather off-hand manner, and she formed the view that there was no point in seeking extensions on that basis. Even though her mother’s medical condition was not considered by any of the previous decision makers, I think it is within the scope of this review to consider it. That is because Centrelink was aware at every stage that Ms Tonkin’s mother was seriously ill, and the previous decisions are not expressed in narrow terms. Indeed, the SSCSD stated “The Act provides that a person’s portability period can be extended in certain situations. The issues for the tribunal to resolve is whether Ms Tonkin’s portability period falls within one of these provisions” then answered that question after an extensive consideration of the provisions that allow for extension of the portability period. The Respondent did not oppose this approach. The Tribunal appreciates the fair, reasonable and helpful way in which Ms McLaren represented the Respondent in this matter.            

7. Given the reasons put forward by Ms Tonkin for remaining in New Zealand beyond 30 June 2020, there are a few specific provisions in the Act that could apply to extend the portability period.

8. Section 1217 contains a table that is used to work out a person’s portability period depending on the benefit they receive, the category they fall into and the reason for their absence. As stated above, generally an allowable absence for a DSP recipient is one that does not cause the total number of days (consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28. This does not apply where the absence is to attend to an acute family crisis. In that circumstance, a portability period of four weeks is specified (which is the same as 28 days but curiously is expressed in weeks, not days). An acute family crisis is defined to include a family member being critically ill or hospitalised with a serious illness.[1]

   [1] Section 1215 of the Act.

9. Subsection 1218C(1) of the Act provides that the Secretary may extend a person’s portability period if satisfied that the person is unable to return to Australia because of, among other things:

   ·a serious illness of the person or a family member of the person;

   ·the hospitalisation of the person or a family member of the person; or

   ·a natural disaster in the country in which the person is located.

10. Section 1218C(2) of the Act provides that the Secretary must not extend the person’s portability under subsection (1) unless the event occurred or began during the period of absence.  

    THE EVIDENCE

11. On 13 March 2019 Ms Tonkin travelled to New Zealand. On 21 March 2019, she provided a medical report concerning her parents’ medical conditions which, she said, was why she was in New Zealand with them. The certificate indicated that for some time both her parents had been in hospital level care and that this would not change. It further indicated that her mother suffered from Alzheimer’s disease and suspected oesophageal cancer, and that her father could die at any time from his medical conditions. Ms Tonkin briefly returned to Australia in May and mid-June 2019. 

12. Centrelink records indicate that on 15 June 2019, Ms Tonkin was advised by Centrelink that the medical certificate was not sufficient for “AFC to be granted” because it did not establish that either of her parents were critically ill or hospitalised with a serious illness at the time of Ms Tonkin’s departure (which would have been in March 2019) and that “AFC is something that occurs suddenly and unexpectedly and requires the customer’s departure at short notice”.[2] It is apparent that in this context “AFC” refers to the portability period that applies when there is an acute family crisis. The wording of the legislation does not expressly or implicitly indicate that a critical illness must occur suddenly and unexpectedly and require the customer’s departure at short notice to constitute an acute family crisis. Ms Tonkin’s father was clearly critically ill and he in fact passed away only five months after the date of the medical certificate. It does not appear that Ms Tonkin was asked to provide further details and evidence to establish whether her portability period could be extended under s 1218C of the Act.

    [2] T8, page 100.

13. Ms Tonkin continued to spend most of her time in New Zealand, with a few short trips of around a week’s duration back to Australia. On one such trip, she arrived in Australian on 21 January 2020. She gave evidence that her mother suffered a decline in January 2020 and she returned to New Zealand because of that.[3] This was on 4 February 2020. She said her mother was in respite care and Ms Tonkin’s two brothers were not always available to help. The facility provided medical carer but Ms Tonkin acted as go‑between with her mother’s doctors and attended palliative care meetings as well as bringing essential items, taking her mother for walks, bathing her and other day-to-day things.[4]

    [3] Transcript page 3, lines 43 to 46 & page 4, lines 1 to 2.

    [4] Transcript page 5, lines 1 to 6.

14. Centrelink records indicate that on 8 April 2020, Ms Tonkin sent an email to Centrelink that included:

    “I am writing to ask permission to have my due date in Australia postponed to a later date. I am currently in N Z as my mother is ill, my plan was to travel back to Brisbane on 1 May. I had full intention of returning as I am very anxious not to have my disability support pension cancelled. Because of current travel restrictions due to Covid19, I believe it will be difficult to return at that time. I am worried about my benefit being cancelled because of these restrictions so I would be very grateful if I could have my date due back in Australia deferred to a new date.”[5]

    [5] T8, Page 109.

15. She later spoke with Centrelink about her situation. In the hearing she said she thought she was waitlisted on a flight on 1 May 2020 and that she was motivated to return to avoid her DSP being cancelled. When asked if her intention to return on 1 May 2020 indicated that her mother’s illness did not render her unable to return to Australia she said:

    “I think - I think that was my plan, was to come back and sort of just keep my pension - just keep intact, and then to return to her.  As I was saying earlier, she got very close to not being with us at all, and then she would sort of bounce a little back a little bit, so it was probably just a period of time where I thought, “Well, okay, she’s doing all right for the moment, I will go back and I will keep my pension intact”, and then when need be, then I would go back again to be with mum.  It was all unknown, it really was, and as I say, I was just trying to do right by the parties on both sides, but I just didn’t get it right.”[6]

    [6] Transcript page 20, lines 13 to 21.

16. On 11 April 2020 that Applicant’s portability was extended to 30 June 2020 due to the COVID travel restrictions. She did not return to Australia on 1 May 2020 or at any time in this period.

17. In July 2020 Ms Tonkin contacted Centrelink, wanting an extension to her portability because her doctor would not allow her to fly due to her high blood pressure. She also indicated that flights to New Zealand were limited and she was in a regional area.[7] Centrelink told Ms Tonkin that there had been a high availability of flights up to 30 June 2020, although there is no independent evidence before me of how available flights were at that time. Centrelink also noted that Ms Tonkin’s high blood pressure appeared to be pre-existing, and she was asked to provide medical evidence to support her claim that it prevented her from flying.[8]

    [7] T8, page 111.

    [8] T8, pages 111 to 112.

18. Ms Tonkin gave evidence that, at that time, the cost of a flight to Australia was exorbitant because there were not many seats available. She was also experiencing anxiety and her blood pressure was up.

19. In August 2020, Ms Tonkin emailed a letter from her doctor. Her email said:

    “Please find attached a letter from my doctor outlining why I have not yet returned to Brisbane. My hope is to come home soon as the trans-Tasman bubble opens as I don’t believe I could cope with the hotel quarantine due to my medical issues.
    I respectfully ask if my payments could be resumed and my date to be back in Australia extended.
    

    [9] T5, page 39.

    I will do everything I can to travel; back home as soon as I am able to.”[9] 

20. Her doctor’s letter included:

    “[Ms Tonkin] suffers with medical conditions that are preventing her from returning to Australia until the transpacific bubble opens.
    

    [10]  T5, page 40.

    Of particular note she is hypertensive, anxious and depressed. Due to these reasons she would struggle in covid managed isolation facilities.”[10]

21. On 14 August 2020 Ms Tonkin’s request for portability extension was rejected on the basis that her medical conditions were pre-existing and she had not taken reasonable action to return to Australia.[11] On 21 August 2020 Ms Tonkin reiterated that her doctor had advised her against travelling because she would struggle in quarantine due to very high blood pressure and severe anxiety.[12]

    [11] T8, page 114.

    [12] T6, page 41.

22. On 4 September 2020 Ms Tonkin requested review on the basis that her medical conditions were not pre-existing and that her doctor advised her not to fly. She indicated that she was extremely worried about travelling back to Australia, and that her hypertension was currently causing blurred vision, dizzy spells, nausea and lack of unawareness of her surroundings. She said:

    “As much as I am anxious to get back home to my family, I know I need to become more stable before I can travel. It isn't just the flight that is the problem, it is the 14 day quarantine, it could possibly be the worst place to put me in with my current problems, I genuinely am very scared to think about that…I cannot afford to lose my disability pension as I will definitely need it when I return so am very anxious to find a solution.”[13]

    [13] T8, page 119.

23. A finding in the internal review decision was that Ms Tonkin was not prevented from returning to Australia due to an event that occurred or begun during the portability period, and the record of the decision includes the following relevant information:

    ·Ms Tonkin’s DSP was granted because of her depression. She had a history of depression and hypertension “among other conditions”;

    ·Ms Tonkin did not see her doctor until 6 August 2020, weeks after her DSP was suspended;

    ·Ms Tonkin could have applied for an exemption from hotel quarantine;

    ·Information in the public domain indicated that while flights from New Zealand to Australia had significantly reduced from 17 March 2020, they were still operating; and

    ·The letter from Ms Tonkin’s doctor stated that she would struggle in COVID managed isolation facilities but not that she was unable to fly.

24. On 27 March 2021 Ms Tonkin returned to Australia. In the hearing she indicated that her mother passed away in March 2022. However, she had some difficulty recalling the years that certain things happened, and she placed her father’s death a year after it occurred, so it is possible that her mother passed away in March 2021 which would be consistent with her permanent return to Australia at that time.   

    CONSIDERATION

25. I think it likely that Ms Tonkin’s father’s predicament came within the definition of acute family crisis in the first half of 2020. However, the four weeks of portability would have been subsumed in the extension Ms Tonkin got due to the COVID travel restrictions. Unfortunately, because she was told that her parents’ ill health was not sufficient, she did not raise it again even though it was relevant to the power to extend her portability period under s1218C of the Act. To come within that section, Ms Tonkin would have to establish that her mother was hospitalised or suffering from a serious illness due to events that occurred after Ms Tonkin arrived in New Zealand in February 2020.

26. Ms Tonkin gave evidence that she felt pressure to return to Australia so her DSP would not be cancelled. When she did try to return, she was very anxious about leaving her mother, however she understood from her dealings with Centrelink that her mother’s condition was not bad enough for an extension. She indicated that sometimes if her mother was “doing a little better” she looked at the airfares but they were very expensive.

27. There is little detail about the trajectory of Ms Tonkin’s mother’s illnesses except that her condition seemed to fluctuate somewhat. Ms Tonkin’s desire to remain in New Zealand to care for her mother as she described shows her to be a compassionate, devoted daughter. It is unfortunate that, after June 2020, Ms Tonkin was not asked to provide further medical evidence about her mother’s condition and history so Centrelink could have established whether there was an event relevant to her mother’s health that occurred after Ms Tonkin’s most recent arrival in New Zealand that rendered Ms Tonkin unable to return to Australia. Based on the limited evidence before me, it appears that Ms Tonkin’s mother was very ill, and in hospital level care, for a long time prior to February 2020 and without further details, I cannot be satisfied that the discretion to extend Ms Tonkin’s portability period is enlivened on the basis of her mother’s ill health or hospitalisation.           

28. The other reasons put forward by Ms Tonkin for staying in New Zealand were the lack of availability of flights and her anxiety. Ms Tonkin conceded that there were flights available but they were very expensive. She did not demonstrate that she could not pay the cost of a flight back to Australia and therefore that she was unable to return to Australia.

29. Ms Tonkin’s anxiety was also put forward as a reason for her reluctance to undergo hotel quarantine. There is no dispute that in the second half of 2020, Australia required international arrivals to undergo a period of hotel quarantine. I take it on notice that some people found hotel quarantine extremely hard to endure. I accept that Ms Tonkin suffered from increased anxiety in the relevant period. I accept that she suffered the symptoms she described to Centrelink at the time. According to Centrelink, her anxiety was pre-existing although there is no independent evidence either way. However, it was not simply anxiety that she said prevented her from travelling to Australia: it was the combination of her anxiety and the completely novel, unforeseeable requirement to undergo hotel quarantine upon arrival in Australia. The Respondent conceded that the COVID-19 pandemic was a “natural disaster” as contemplated by s 1218C(1)(h) of the Act and that the widespread disruption associated with it began after Ms Tonkin departed Australia on 4 February 2020. Accordingly, I think the discretion to extend the portability period under s 1218 of the Act could have been enlivened if Ms Tonkin had been unable to return to Australia because of the combination of her anxiety and the Australian government’s rules about hotel quarantine.

30. While Ms Tonkin’s doctor said she would struggle in hotel quarantine, the medical evidence did not provide details about how hotel quarantine would likely affect her nor establish that Ms Tonkin would be unable to withstand hotel quarantine. Further, as the Respondent pointed out, she could have applied for an exemption from hotel quarantine. There is no evidence that Ms Tonkin unsuccessfully applied for an exemption or made any enquiries about that. It would seem reasonable to have done that. It is not clear whether Ms Tonkin also asserted that her anxiety made her unable to fly back to Australia, however the medical evidence did not establish that Ms Tonkin’s anxiety rendered her unable to withstand a flight home to Australia.

1. A matter that left Ms Tonkin feeling let down was that Centrelink sent the correspondence warning about her DSP being cancelled to her residential address in Australia while it knew she was in New Zealand. This is unfortunate given the obvious impact that cancellation of her DSP would have on her. However, her contact with Centrelink in the months that followed 30 June 2020 indicated that she was aware that she was at risk of her DSP being cancelled if she remained in New Zealand without her portability period being extended.  

2. Ms Tonkin had strong reasons for remaining in New Zealand, however the evidence does not established the very specific circumstances required by the legislation for her portability period to have been extended beyond 30 June 2020. Therefore, I must affirm the reviewable decision.  

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

........................[SGD]......................

Associate

Dated: 27 April 2023

Dates of hearing:	17 October 2022 19 January 2023
Applicant:	By telephone on 17 October 2022 No appearance on 19 January 2023
Respondent:	Mr David McLaren Minter Ellison