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

Case [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…

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Details
AGLC
Trajcevski and Secretary, Department of Social Services (Social services second review) [2016] AATA 15
Case
[2016] AATA 15
Decision Date

CaseChat Overview and Summary

In the case of Trajcevski v Secretary, Department of Social Services, the applicant, Mr Trajcevski, appealed the decision to cancel his disability support pension (DSP). The dispute centred on whether Mr Trajcevski was still terminally ill, a condition required for the continuation of his DSP. The matter was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue the AAT had to decide was whether the decision to cancel Mr Trajcevski's DSP, made on 10 September 2013, was correct. The Secretary had cancelled the pension on the basis that Mr Trajcevski was no longer terminally ill. The AAT was tasked with determining the appropriate date to assess Mr Trajcevski's terminal illness status and evaluating the medical evidence presented.

The AAT considered the medical evidence provided by Dr Mihajlo Nasev, Mr Trajcevski's treating physician, and Dr Mieka Tabart, a Health Professional Advisory Unit (HPAU) doctor. Dr Nasev, who has been treating Mr Trajcevski since 2005, provided detailed evidence of Mr Trajcevski's deteriorating health condition. He testified that Mr Trajcevski had a life expectancy of between six months and two years, and that recent medical issues, such as a viral infection, had worsened his condition. Dr Tabart, who had not personally examined Mr Trajcevski, concluded in her reports that there was no conclusive evidence to support a finding that Mr Trajcevski was terminally ill. The AAT found Dr Nasev's evidence more credible due to his direct, long-term involvement in Mr Trajcevski's care. The Tribunal concluded that on 10 September 2013, Mr Trajcevski was indeed terminally ill, leading to the decision that the cancellation of his DSP was incorrect. The Tribunal set aside the Secretary's decision and remitted the matter for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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. Dr Nasev said that he has been treating Mr Trajcevski since 2005. 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. 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. 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. 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. 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. Dr Nasev said that at present Mr Trajcevski is tied to an oxygen machine. 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. 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. Dr Nasev was again asked his current prognosis and he said that he could pass away in several months. 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. 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.

Decision

Reasons for decision

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 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. 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. On 10 September 2013, a delegate of the Secretary cancelled Mr Trajcevski's DSP with effect from 22 October 2013. Mr Trajcevski sought review from an ARO, but on 1 November 2013 the ARO affirmed the Secretary's cancellation decision. 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. 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; andBronchiectasis, both left and right lower lobes.[26] These conditions have been present since, at least 2003 and I accept they are chronic and debilitating. ... Mr Trajcevski now appeals to this Tribunal.THE LEGISLATION 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. The qualification criteria for DSP are set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the SS Act). 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.

Ratio Decidendi

Legal Principle Established

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 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? 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. 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. 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. 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 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. 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. 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. 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