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

[2016] AATA 15

Trajcevski and Secretary, Department of Social Services (Social services second review) [2016] AATA 15 (20 January 2016)

Division	GENERAL DIVISION
File Number(s)	2014/1346
Re	Vangel Trajcevski
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Prof R McCallum AO, Member
Date	20 January 2016
Place	Sydney

The decision of the former Social Security Appeals Tribunal is set aside and remitted with a direction that on 10 September 2013 Mr Vangel Trajcevski was terminally ill within the meaning of subsection 1218AA(1) paragraph (c) of the Social Security Act 1991 (Cth).

.......................................................................

Prof R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY - pensions - disability support pension - cancellation - whether Applicant terminally ill - decision under review set aside and remitted

LEGISLATION

Social Security Act 1991 (Cth) ss (94)(1)(ea), 1288AA (1)

Social Security (Administration) Act 1999 (Cth) s 80(1)

CASES

Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983

Halime and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 576

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Prof R McCallum AO, Member

20 January 2016

BACKGROUND

1. The Applicant, Mr Vangel Trajcevski whose home country is Macedonia, immigrated to Australia in about 1971 when he was a teenager. At that time, Macedonia was part of Yugoslavia.

2. In Australia, Mr Trajcevski worked as a manual labourer, truck driver and machine operator. Later he was employed by what is now known as Telstra.

3. Mr Trajcevski became an Australian Citizen on 18 February 1982.

4. In 1983 while working as a linesman, Mr Trajcevski suffered a back injury when a tractor fell on him. Mr Trajcevski has not worked since. He claimed compensation in August 1983, but did not receive a lump sum payment of $200,000.00 until November 1989.

5. Mr Trajcevski returned to Macedonia in 1990 and remained there until 2003.

   THE 2003 GRANT OF DSP

6. Mr Trajcevski and his wife returned to Australia on 20 January 2003.

7. Mr Trajcevski was granted Disability Support Pension (DSP) on 9 October 2003 owing to his lower back pain and chronic obstructive airways disease.

8. In December 2004, Mr Trajcevski notified Centrelink that he intended to return to Macedonia in February 2005 because the climate was better for his health. Centrelink advised Mr Trajcevski that in accordance with the new rules, which came into effect on 1 July 2004, DSP was only portable overseas for a period of 13 weeks unless the person was considered to be terminally ill.

9. On 21 January 2005, an authorized review officer (ARO) determined that Mr Trajcevski was not terminally ill.

10. Mr Trajcevski sought review from the Social Security Appeals Tribunal (SSAT). On 24 March 2005, the SSAT held that Mr Trajcevski was terminally ill and accordingly the portability period for his DSP was unlimited.

11. Mr Trajcevski departed Australia for Macedonia on 18 March 2005.

12. Mr Trajcevski visited Australia from 30 January 2011 to 5 March 2011, and from 22 December 2011 to 18 March 2012 when he returned to Macedonia. Mr Trajcevski remains residing in Macedonia and has not returned to Australia.

    THE DECISION OF 10 SEPTEMBER 2013

13. On 5 January 2012, the Department of Human Services (the Department) advised Mr Trajcevski that it was conducting a review to determine whether he was still terminally ill.

14. Mr Trajcevski forwarded further medical material to the Department between May 2012 and March 2013. The medical information was forwarded to the Health Professional Advisory Unit (HPAU) for an assessment. Dr Tabart from the HPAU wrote a report dated 26 July 2012, noting further medical evidence may be required as the reports presented so far were inconclusive. Further medical evidence was provided and, in a further report dated 24 June 2013, Dr Tabart concluded that there was no conclusive evidence to support a finding that Mr Trajcevski was terminally ill.

15. On 10 September 2013, a delegate of the Secretary cancelled Mr Trajcevski's DSP with effect from 22 October 2013.

16. Mr Trajcevski sought review from an ARO, but on 1 November 2013 the ARO affirmed the Secretary's cancellation decision.

17. Mr Trajcevski sought review from the SSAT, but on 18 February 2014 the SSAT affirmed the decision of the ARO. In effect, the SSAT affirmed the Secretary's decision of 10 September 2013 to cancel Mr Trajcevski's DSP.

18. In its 18 February 2014 decision, the SSAT summarised Mr Trajcevski's impairments in the following words.

    [25] It is accepted that Mr Trajcevski suffers from a number of medical conditions and has done so for a number of years. From the evidence before me, I accept that Mr Trajcevski has the following conditions:

    Lower back pain, disc protrusion at L4/5;

    Chronic alcoholism;

    Neurasthenia (mental fatigue and physical fatigue);

    Chronic obstructive airways disease;

    Emphysema; and

    Bronchiectasis, both left and right lower lobes.

    [26] These conditions have been present since, at least 2003 and I accept they are chronic and debilitating. ...

19. Mr Trajcevski now appeals to this Tribunal.

    THE LEGISLATION

20. Over recent years, the Parliament has altered the rules concerning the portability of social security payments, including the payment of DSP to recipients who are overseas. It is not necessary to set out these rules in detail as it will suffice to write the following.

21. The qualification criteria for DSP are set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the SS Act).

22. Subsection 94(1) was amended in 2011 by the addition of paragraph (eA). This paragraph reads as follows.

    (ea)  one of the following applies:

    (i) the person is an Australian resident;

    (ia)  the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

    (ii)  the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

23. Section 1218AA of the SS Act reads as follows.

    (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;

    (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.

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

    (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.

24. Subsection 80(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), authorises the Secretary to suspend or cancel a social security payment if the person is not qualified for the payment or the payment is not payable.

25. Subsection 80(1) of the Administration Act reads as follows.

    If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

    (a)       Who is not, or was not, qualified for the payment; or

    (b)       To whom the payment is not, or was not, payable;

    The Secretary is to determine that the payment is to be cancelled or suspended.

    THE CONCESSIONS OF THE RESPONDENT

26. Paragraphs 49-51 of the Respondent's statement of facts and contentions read as follows.

    [49]     The Applicant permanently left Australia on 19 March 2005. At that time, he could only be paid DSP while overseas on the basis of a determination under s 1218AA of the Act that he met the criteria in s 1218AA(1)(a) to (e).

    [50]     The Secretary does not dispute that the Applicant is severely disabled within the meaning of the Act, received DSP and returned to the country of his origin to be near family members, thus satisfying paragraphs (a), (b), (d) and (e).

    [51]     The only issue in this matter is whether the Applicant met the criterion in s 1218AA(1)(c) that "the person is terminally ill".

    THE ISSUE BEFORE THE TRIBUNAL

27. It is not disputed that Mr Trajcevski is resident in Macedonia. Therefore pursuant to subsection 94(1) subparagraph (eA)(ii) of the SS Act he must meet all of the requirements specified in subsection 1218AA(1) of the SS Act. The Secretary concedes that Mr Trajcevski meets the requirements of all of the paragraphs of subsection 1218AA(1) other than paragraph (c) because Mr Trajcevski is not terminally ill.

28. Therefore, the issue which I am required to decide, as I stand in the shoes of the Secretary, is whether the cancellation decision of 10 September 2013 was correct because Mr Trajcevski was not terminally ill.

    THE MEANING OF "TERMINALLY ILL"

29. The phrase "terminally ill" which appears in subsection 1218AA(1) paragraph (c) is not defined in the SS Act.

30. In the 24 March 2005 decision of the SSAT which held that Mr Trajcevski was terminally ill, a broad meaning was given to this phrase. The SSAT stated as follows:

    [36] The tribunal notes that in the carer allowance application the phrase a terminal phase of a terminal illness is used, but in 1218AA. 1(c) about portability of a disability support pension the phrase terminally ill is used and no time sequence is mentioned. The tribunal finds that the phrase "terminally ill" is a more difficult phrase to define. Persons with mesothelioma, some cancers with secondaries, liver disease, kidney disease, congestive cardiac failure and conditions such as motor neurone disease, multiple sclerosis and muscular dystrophy have terminal illnesses. Frequently there is no treatment available to lessen their increasing failure and approaching death but seldom would their treating specialist predict the likely length of time of their survival, until they are well nigh unto death. The tribunal has no doubt on the medical evidence presented that Mr Trajcevski will not recover from his poor respiratory function but no one can predict for how long he will continue to live in this 'current state of half living' where he requires assistance even to go about his activities of daily living and has no prospect of any improvement in his state of health or activity. The drier, cooler and cleaner air of Bitola may make Mr Trajcevski more comfortable in attempting to breathe but it will not do anything to improve his lung pathology. The tribunal accepts using the South Australian Consolidated Acts Interpretation of "terminal illness" and "terminal phase" that Mr Trajcevski has reached the terminal phase of his terminal illness where there is no real prospect of recovery or remission of symptoms, on either a permanent or temporary basis. The tribunal accepts that no one can state how long it will be before pneumonia, bronchitis or respiratory failure is likely to terminate Mr Trajcevski's life, but finds the phrase terminally ill a vague term for which the tribunal cannot find any adequate definition in textbooks, dictionaries or from medical colleagues who are dealing with dying patients, such as oncologists.

31. However, in this Tribunal, that is in the Administrative Appeals Tribunal, in Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983, a narrower interpretation was given to "terminally ill".

32. Senior Member J Handley stated as follows.

    [11] The words "terminally ill" are not defined by the Act. The Social Security Guide refers to a life expectancy of 24 months or less as an aid to interpreting these words. Professor J H Maynard, a former member of this Tribunal - being a medical practitioner and pathologist - adopted the Shorter Oxford English Dictionary meaning of these words as "last stages of a fatal disease", (refer Re Toseska and Secretary, Department of Family and community Services [2005] AATA 386 at paragraph 20).

    [12] I think that is an appropriate definition. The words "last stages" are referable to the word "terminal". The "fatal disease" is the "illness". ...

33. In Halime and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 576, Senior Member N Isenberg examined the phrase "terminally ill" in the following passage.

    [14]     Although the Act does not define 'terminally ill', the Guide to Social Security Law at 3.6.2.20 does offer guidance to a decision-maker:

    Terminal Illness

    Manifest inability to work is accepted if medical evidence indicates the claimant's current medical condition is chronic and debilitating with a prognosis that the condition is terminal, AND life expectancy is 24 months or less.

    [15]     Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see  Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

    ...

    [17]     In Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983 SM Handley, adopted the interpretation of “terminally ill” of the Shorter Oxford English Dictionary as "last stages of a fatal disease".  There was no evidence, nor indeed any contention, that Mr Halime suffers a fatal disease that is in its last stages.

    [18]     I do not accept Mr Halime to be terminally ill. ...

34. As was noted by Senior Member N Isenberg, the Guide to the Social Security Law sets out relevant departmental policy. At 7.1.2.10 of the guide the phrase "terminal illness" is defined as follows.

    Indefinite portability of DSP - terminally ill disability support pensioners

    In special circumstances recipients of DSP who are leaving Australia permanently and who are in the terminal phase of a terminal illness - where life expectancy is less than 2 years may be granted unlimited portability if they are:

    severely disabled (1.1.S.110), AND

    the purpose of the absence is to be near or with a family member; OR to return to their country of origin.

    ...

35. Thus departmental policy defines "terminal illness" as a serious illness "where life expectancy is less than 2 years".

36. I agree with Senior Member N Isenberg that I should abide by this policy unless in the case before me there are cogent reasons to the contrary. See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645. In my view, the words "terminal illness" do import an element of time, and I accept that two years or less is appropriate, having regard to the scope of the portability provisions in the SS Act.

    THE DOCUMENTARY EVIDENCE

37. There is a large amount of documentary evidence before the tribunal. There are the documents provided by the Secretary pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents.

38. There are also a number of supplementary documents. There are two reports from Dr Tabart of the HPAU dated 25 November 2014 and 4 November 2015.

39. The Applicant, that is Mr Trajcevski, has furnished the Tribunal with several documents, including the following reports.

    ·Discharge Summary by Dr Mihajlo Nasev.

    ·Specialist’s/Sub-Specialist’s report of Dr Vasko Vasilev dated 18 June 2015.

    ·Specialist’s/Sub-Specialist’s report of Prof Angjelko Gjorchev dated 19 Sep 2015.

    ·Specialist’s/Sub-Specialist’s report of Dr Mihajlo Nasev dated 21 Sep 2015.

    ·Specialist’s/Sub-Specialist’s report of Dr Vasko Vasilev dated 23 Sep 2015.

40. The medical reports from the doctors in Macedonia were written in Macedonian and I have examined translations of these reports.

41. During the hearing, I admitted as exhibits the following two documents.

    ·Exhibit A1: Signed Statement of Vangel Trajcevski dated 28 November 2015.

    ·Exhibit R1: Letter from Koutzoumis Lawyers to Hannelore Schuster dated 23 September 2014 (Ms Schuster is the lawyer representing the Respondent).

    THE HEARING

42. The date of the hearing was 1 December 2015. Mr Trajcevski who it will be recalled is resident in Macedonia did not appear at the hearing. He did not give evidence by telephone.

43. Mr Trajcevski was represented by Mr T Saunders, and the Respondent was represented by Ms H Schuster. I commend both counsel for their detailed submissions and for their assistance during the hearing.

    The evidence of Dr Mihajlo Nasev

44. Dr Nasev who resides in Macedonia, gave evidence by telephone with the aid of an interpreter in the Macedonian language. Given the time difference, Dr Nasev gave evidence in the middle of the night. On several occasions, it was difficult to hear what Dr Nasev said over the phone.

45. Dr Nasev recounted that he has been a doctor for 32 years. He said that he has been a pulmonary specialist (that is a lung specialist) for the last 23 years and is currently head of the department at the hospital in Bitola, Macedonia.

46. Dr Nasev said that he has been treating Mr Trajcevski since  2005.

47. Dr Nasev was asked whether in 2005 Mr Trajcevski was suffering from the following impairments: Lower back pain, disc protrusion at L4/5; Chronic alcoholism; Neurasthenia; Chronic obstructive airways disease; Emphysema; Bronchiectasis, both left and right lower lobes; and degenerative changes involving the lumbar spine. Dr Nasev said that Mr Trajcevski had those impairments in 2005.

48. Dr Nasev was asked what was meant by the term "terminally ill". He answered that this term is not used in Macedonia. He said that he regarded terminally ill as meaning that the patient was in a very bad condition.

49. Dr Nasev was taken to his medical report dated 4 June 2012. In it, he said that Mr Trajcevski was suffering from severe stages of obstructive restrictive disease and emphysema. He was asked whether he considered these diseases to be terminal. Here the phone line was difficult to hear, but it appears Dr Nasev said yes.

50. Dr Nasev was then taken to his medical report dated 30 October 2013 where he stated that Mr Trajcevski was in the terminal stage of his illness. Dr Nasev confirmed this statement.

51. Dr Nasev was asked what his present prognosis was for Mr Trajcevski. Dr Nasev said that in his opinion he had between 6 months and 24 months to live.

52. Dr Nasev said that at present Mr Trajcevski is tied to an oxygen machine.

53. In cross-examination, Dr Nasev was taken to his report dated 30 October 2013 where he stated that Mr Trajcevski had 24 months to live. He was asked how he made this diagnosis. He said by observations of Mr Trajcevski's heart and lungs. He also said that he used a spirometer.

54. Dr Nasev was asked what his estimate of Mr Trajcevski's life expectancy was in March 2012. Dr Nasev said that in his view there was a fifty/fifty chance he would pass away in two years.

55. Dr Nasev was again asked his current prognosis and he said that he could pass away in several months.

56. Dr Nasev was asked about Mr Trajcevski's recent hospitalisation with a viral infection. Dr Nasev said that this infection worsened Mr Trajcevski's condition.

57. Dr Nasev was asked about Mr Trajcevski's trip to Australia from November 2011 to March 2012. Dr Nasev said that he saw Mr Trajcevski before this trip, and that he forbade him to travel.

58. Dr Nasev said that Mr Trajcevski wished to go to Australia to visit his sick sister.

1. Dr Nasev said that before this trip, Mr Trajcevski was not on oxygen therapy, however, he did occasionally receive oxygen.

2. Dr Nasev was asked whether in predicting Mr Trajcevski's life expectancy, he examined any medical data like population predictions. Dr Nasev said that he had not looked at this type of data, but that he had made his predictions as Mr Trajcevski's treating doctor.

   The evidence of Dr Mieka Tabart

3. Dr Tabart gave evidence by telephone.

4. Dr Tabart explained that she is a medical advisor with the Department. Dr Tabart had prepared four reports on Mr Trajcevski for the Department.

5. Dr Tabart was taken to her medical report dated 26 July 2012 where Dr Tabart stated that she used the prognostic prediction tool provided from the Merck Manual online. Put briefly, this is the forced expiratory volume test known as the FEV test. using the medical reports from Macedonia, Dr Tabart stated that Mr Trajcevski's five year survival is currently marginally better than 40 to 60%. Dr Tabart confirmed this statement in her report.

6. Dr Tabart was taken to her later reports of 24 June 2013, 25 November 2014 and 4 November 2015. In her latest report dated 4 November 2015, Dr Tabart was asked whether she had anything else to add and she said no. In that report, Dr Tabart answered question one as follows.

   New and additional medical evidence reviewed for this report does not indicate whether Mr Trajcevski was terminally ill as at 17 June 2012.

7. In cross-examination, Dr Tabart stated her medical qualifications and her work history. Dr Tabart said that she has been employed by the Department for the past four years.

8. Dr Tabart was taken to her report of 26 July 2012 where she discussed the FEV test. Dr Tabart agreed that the FEV test is not as definitive of mortality as is the BODE index.

9. Dr Tabart explained the BODE index as follows. "B" stands for body Mass index, "O" stands for the degree of air flow obstruction, "D" stands for "Dyspnea" which is the medical term for shortness of breath, and "E" stands for exercise capacity which is measured by the six-minute walk test. Dr Tabart explained that she was not able to use the BODE test as Mr Trajcevski resided in Macedonia.

10. Dr Tabart was taken to the signed statement of Mr Trajcevski dated 28 November 2015 which is exhibit A1. In paragraph 23, Mr Trajcevski wrote, "I commenced home oxygen therapy in October 2012 and I continue to receive this therapy to this day".

11. Dr Tabart was also taken to the medical report of Dr Nasev dated 30 October 2013 where Dr Nasev said that "continuous oxygen therapy has been prescribed with oxygen concentrated Everflo in home conditions which the patient has, and has been, trained to use". 

12. Dr Tabart was asked whether these statements altered her view of Mr Trajcevski's life expectancy. Dr Tabart said that when she wrote her report of 24 June 2013 these statements were not available to her.

    CONSIDERATION

13. The sole issue which I am required to decide, as I stand in the shoes of the Secretary, is whether the cancellation decision of 10 September 2013 was correct because Mr Trajcevski was not terminally ill. Mr Trajcevski's DSP was cancelled pursuant to subsection 80(1) of the Administration Act because the Secretary was satisfied that Mr Trajcevski was no longer qualified to receive DSP. I have quoted above paragraphs 49-51 of the Respondent's statement of facts and contentions. It is clear that the Secretary was satisfied that Mr Trajcevski was no longer qualified for DSP, only because the Secretary was satisfied that Mr Trajcevski was no longer terminally ill.

    What is the date on which the Tribunal may determine that Mr Trajcevski was no longer terminally ill?

14. It is not in dispute that Mr Trajcevski is seriously ill. In fact, he has been seriously ill at least since 24 March 2005 when the SSAT handed down its decision that Mr Trajcevski was terminally ill.

15. It was suggested by the Respondent that the appropriate date to determine whether Mr Trajcevski was or was not terminally ill, was on 18 March 2012 which was the day on which he departed Australia for Macedonia.

16. However, when the Secretary's delegate decided to cancel Mr Trajcevski's DSP on 10 September 2013, the delegate took into account the medical evidence which the Department had received up until this date.

17. In order to be fair to Mr Trajcevski, I find that the date on which I must be satisfied that Mr Trajcevski was or was not terminally ill, is 10 September 2013.

    The medical evidence

18. There are a large number of medical reports on file with the Tribunal. Dr Mihajlo Nasev and Dr Mieka Tabart gave oral evidence to the Tribunal. I place greater weight on the evidence of Dr Nasev, simply because he is Mr Trajcevski's doctor, and he has been treating him since 2005. Dr Tabart gave clear and cogent evidence, however, she has never been in a position to observe Mr Trajcevski.

19. It is clear that Mr Trajcevski's health has recently got worse. In his evidence, Dr Nasev said that the viral infection which necessitated Mr Trajcevski's hospitalisation had led to a deterioration in his health and that he is now tied to an oxygen machine. Dr Nasev said that in his view, Mr Trajcevski has a life expectancy of between six months and two years.

20. In his report dated 30 October 2013, Dr Nasev said that Mr Trajcevski had 24 months to live. When asked what his prognosis was in March 2012, Dr Nasev said that he thought Mr Trajcevski had a fifty/fifty chance of living for two years.

21. In her evidence, Dr Tabart was taken to her report of 26 July 2012 where she concluded that Mr Trajcevski's five year survival is currently marginally better than 40 to 60%. Dr Tabart agreed that the FEV test on which she partly relied, was less reliable than is the BODE test.

    The use of domiciliary oxygen

22. The Tribunal received  an unsigned statement from Mr Trajcevski on 10 November 2015. At the hearing, the Tribunal received a signed statement from Mr Trajcevski dated 28 November 2015 which is exhibit A1. The only difference between the two statements is the following passage which I have already quoted above when examining the evidence of Dr Tabart. It read, "I commenced home oxygen therapy in October 2012 and I continue to receive this therapy to this day". This sentence was handwritten.

23. However, in his medical report dated 30 October 2013, Dr Nasev stated that "continuous oxygen therapy has been prescribed".

24. Although this issue is not free from doubt, I find that since October 2012, Mr Trajcevski had used domiciliary oxygen, although the extent of its use is not clear. It is easier for me to make this finding because at the very least, it is clear that on 30 October 2013 domiciliary oxygen was recommended. This recommendation was less than two months after the cancelation decision of 10 September 2013.

    CONCLUSION

25. After carefully examining the whole of the evidence, I find that I am not satisfied that on 10 September 2013, Mr Trajcevski ceased to be terminally ill within the meaning of subsection 1218AA(1) paragraph (c) of the SS Act.

26. Having regard to Dr Nasev's evidence and also to Mr Trajcevski's use of domiciliary oxygen, I find that I am not satisfied that Mr Trajcevski's life expectancy was less than two years on 10 September 2013. Of course, more than two years have elapsed since 10 September 2013. Given the available evidence on 10 September 2013, I further find that a prediction of less than two years life expectancy was reasonable in all of the circumstances.

27. I appreciate that my view differs from the views of the SSAT and earlier decision makers.

28. However, I have had available to me oral evidence from Dr Nasev and Dr Tabart, together with more recent medical reports.

    DECISION

29. The decision of the former Social Security Appeals Tribunal is set aside and remitted with a direction that on 10 September 2013 Mr Vangel Trajcevski was terminally ill within the meaning of subsection 1218AA(1) paragraph (c) of the Social Security Act 1991 (Cth).

I certify that the preceding 87 (eighty -seven) paragraphs are a true copy of the reasons for the decision herein of Prof R McCallum AO, Member

...............................[sgd].........................................

Associate

Dated 20 January 2016

Date(s) of hearing	1 December 2015
Counsel for the Applicant	Mr T Saunders
Solicitors for the Applicant	Koutzoumis Lawyers
Solicitors for the Respondent	Department of Human Services