Walairut WONG and Secretary, Department of Social Services
[2014] AATA 831
•5 November 2014
[2014] AATA 831
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0152
Re
Walairut WONG
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr C Ermert, Member
Date 5 November 2014 Place Melbourne The Tribunal affirms the decision under review
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Mr C Ermert, Member
SOCIAL SERVICES – carer payment – carer allowance – absence from Australia – maximum portability period – whether unable to return to Australia – serious illness – hospitalisation – decision affirmed
Legislation
Social Security Act 1991 sections 1215, 1217, 1218, 1218C
REASONS FOR DECISION
Mr C Ermert, Member
xx October 2014
INTRODUCTION
Mrs Wong, the Applicant in this application (2014/0152), is the carer for her son, Marcus Wong, the Applicant in a related application (2014/0151). Mrs Wong has been receiving carer payment since 2001 and carer allowance since 2000.
On 14 May 2013 Mrs Wong contacted Centrelink to advise that she and Marcus would be departing for overseas on 19 May 2013. Centrelink is the service provider for the Department of Social Services, the Respondent. On the same day Centrelink wrote to Mrs Wong to advise that her payments would be paid only up to 30 June 2013.
On 19 May 2013 Mrs Wong and Marcus departed Australia and travelled to Thailand. On 12 June 2013 they travelled from Thailand to China. Mrs Wong’s payments were suspended on 2 July 2013. Mrs Wong and Marcus returned to Australia on 13 July 2013.
On 17 August 2013 an authorised review officer (ARO) of Centrelink affirmed the decision to suspend Mrs Wong’s payments. On 11 December 2013 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision. This matter is an application for review of the SSAT’s decision.
The material facts and evidence relating to this case, relate also to application number 2014/0151 for Marcus Wong. The applications were heard together.
THE HEARING
Due to Mrs Wong’s state of health the hearing was conducted by telephone. Mrs Wong represented herself and Marcus. Mr Tim de Uray, a departmental lawyer, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). For Mrs Wong, I took into evidence:
·a folder of documents enclosing a covering letter to the Tribunal dated 5 April 2014, revised on 14 May and 18 May 2014 (enclosure S0), together with 13 enclosures labelled S1, S1a, S2, S2, S3, S4, S4a, S5, S6, S7, S8, S9, and S10 (the folder of submissions);
·Exhibit A1 – Mrs Wong’s letter to the Administrative Appeals Tribunal (AAT) dated 1 October 2014 redacting sections G, H and I, with the following attachments:
oReport by Dr Chandra Krishnamurthi dated 13 August 2014;
oA pamphlet from Carers Victoria entitled Carers in Australia – the facts; and
oThe Centrelink 2014 PAYG Payment Summary – Individual Non Business relating to Mrs Walairut Wong, dated 12 August 2014.
·Exhibit A2 – Walairut’s comments on Tim de Uray’s lodgement to AAT dated 4/7/14;
·Exhibit A3 – Comments on Mr Tim de Uray’s lodgement to AAT dated 7 July 2014 by Marcus’ nominee (Walairut Wong, Marcus’ mother and fulltime carer); and
·Exhibit A4 – report by Mr Edwin Kleynhans, psychologist, dated 3 October 2014.
For the Respondent I took in the Secretary’s Statement of Facts and Contentions in this matter dated 4 July 2014. I also took in the Secretary’s Statement of Facts and Contentions dated 7 July 2014, relating to the application of Marcus Wong
LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act).
THE ISSUES
Section 1217 of the Act prescribes the maximum portability period of six weeks for both the carer payment and the carer allowance. It is not in dispute that Mrs Wong and her son were outside Australia from 19 May 2013 to 13 July 2013, a period of more than six weeks.
The only section of the Act that might provide for an extension to Mrs Wong’s maximum portability period is section 1218C. Section 1218C(1) provides that the Secretary may extend a person’s maximum portability period if the Secretary is satisfied that the person is unable to return to Australia for any of a number of events. The only events relevant to this case are:
(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;
…
Section 1218(2) of the Act provides relevantly that the Secretary must not extend the person’s portability period unless the event occurred or began during the period of absence.
I must determine from the evidence whether I am satisfied that Mrs Wong and her son were unable to return to Australia because of any of the relevant events, and if so, that the events occurred or began during their period of absence.
THE EVIDENCE
Mrs Wong gave telephone evidence under affirmation.
Mrs Wong commenced by stating that her written submissions contain the details of her evidence and contentions. She said that her case had been incorrectly handled by Centrelink and that she did not get the information about the change of laws. She said she was not told that she could go overseas for six weeks, return to Australia for six weeks and then go overseas again for six weeks without losing her benefits.
Mrs Wong said she had major dental problems and been to Thailand several times for treatment. She wanted to go back for further treatment. Mrs Wong said that she tried to ring Centrelink on 13 May 2013 until her mobile ran out of money. She said she could not wait for three hours at the Centrelink office in Heidelberg as she had a major dental problem and had to make a decision about her travel arrangements. Mrs Wong stated that had she received the information from Centrelink about the maximum portability period she would not have gone to Thailand but would have had her dental treatment in Melbourne.
Mrs Wong said that a Centrelink officer told her to take Marcus for a Job Capacity Assessment (JCA). She said she could not get a JCA for Marcus as it was too hard. He cannot be employed, not even for two hours. Mrs Wong said that Marcus had an intensive assessment by a psychiatrist in 2004. She said that her family doctor said that Centrelink should not talk to Marcus as it would make him depressed.
Mrs Wong stated she was very ill in Thailand as evidenced by her communications with her travel agent in Bangkok included in the folder of submissions.
In regard to her travel to China, Mrs Wong said the trip was taken on humanitarian grounds. She had never seen her brother and other family members in China. She said she could have gone for longer if Centrelink had given her the information she needed.
In response to questions from Mr de Uray, Mrs Wong said that on 13 May 2013 she bought one-way tickets from Melbourne to Bangkok. Mrs Wong agreed that she had received the letter from Centrelink before she and Marcus departed Australia and knew they had only six weeks before their benefits would cease.
Mr de Uray took Mrs Wong to enclosure S0 in her folder of submissions, in which she said on pages 2 and 3 … because have thought we should pay up to 3 months while we were away from Australia and [f]or me to use respite care 12 days for Marcus in Thailand alone (because I could not while I was sick during the trip), would also qualify for payment to me until 12 July 2013. Mr de Uray asked Mrs Wong if, despite receiving the letter from Centrelink, she still believed she would be paid to 12 July 2013. Mrs Wong said that in her written submission she was pointing out to people what happened. She said she was sick but without a doctor’s certificate no-one believed her. She added that another avenue that had not been used before was respite.
Mr de Uray asked if Mrs Wong was saying that she was in respite care in Thailand. Mrs Wong replied I was sick and good people were willing to look after Marcus.
In response to more questions from Mr de Uray, Mrs Wong agreed she and Marcus left Australia on 19 May 2013 and on 12 June 2013 they left Thailand for China. She said she started to get sick when they got to Bangkok. She said she was unwell before they left Australia because of Centrelink. Mrs Wong described her sickness in Bangkok as tired, heat, feeling bad, rushed. When asked if she felt better when she departed for China, Mrs Wong replied fit enough to depart.
Mr de Uray asked when Mrs Wong booked the flight to China. Mrs Wong said she booked the flight on 4 June 2013 by telephone while she was staying in a Buddhist monastery. She said she stayed in the monastery because … it is the place I stay. She said she has stayed there in the past as well and that it was rent-free. She said she did not have to get visas as she picked them up in Bangkok on 20 May 2013 after her arrival from Australia.
Mrs Wong described her sickness while in the monastery for the period from 4 to 11 June 2013 in the following terms sick, very tired, urinary tract infection, had to go to the toilet a lot, diarrhoea, anxiety and depression. She said they left the monastery on 11 June 2013 and travelled 600 kilometres by coach to Bangkok.
Mrs Wong agreed that it was important for her to go to China to see her family. She said she wanted to go for two months but she was told she could go for only six weeks. She changed her plans by cutting down her time in Thailand but she was sick in Thailand. Mr de Uray put to Mrs Wong that although she knew she could stay away only six weeks she still continued with her trip to China. In reply, Mrs Wong said I do not want to be controlled by Centrelink. I will fight.
SUBMISSIONS
Mrs Wong submitted that she was in a compelling situation. She did not go to China for a holiday. She had to see her siblings in their old age.
Mrs Wong contended that she was telling the truth. Centrelink staff had made mistakes. She felt punished and was looking for justice. She contended that something happened beyond my control.
Mr de Uray referred to the submissions contained in the Secretary’s Statement of Facts and Contentions dated 4 July 2014.
He submitted further that Mrs Wong received the advice notices from Centrelink and knew of the six week period prior to her departure from Australia. He contended that Mrs Wong did not go to the monastery to recuperate from an illness that arose in Thailand. He contended that her stay at the monastery was arranged before leaving Australia and that she had used it before for accommodation.
Mr de Uray submitted that Mrs Wong booked her flight to China on 4 June 2013 which was within the six-week maximum portability period. At the same time, she arranged for her return to Australia on a date outside the portability period.
Mr de Uray accepted that Mrs Wong suffered from some medical conditions; however, none of them were a serious illness that prevented her from returning to Australia in the terms of section 1218C of the Act. In support of that submission, Mr de Uray contended that when Mrs Wong recovered from her sickness she was able to travel to China. He contended further that there was no evidence that Mrs Wong continued to suffer any illness while in China that prevented her returning to Australia.
In her submissions-in-reply Mrs Wong contended that although she had planned to stay at the monastery, she had stayed on longer to get well. It was the most suitable place to stay as it also provided for Marcus.
Mrs Wong said she made her travel booking to China on 4 June 2013 as she had felt she would be better by then. She said her daughter booked the flight back to Australia.
Mrs Wong contended that she had a serious illness. She submitted that both her doctor and her psychologist say how bad her conditions were, referring to both her physical and mental illnesses.
TRIBUNAL CONSIDERATIONS
Section 1217 of the Act sets out the maximum portability periods for social security payments. It is not in contention that the maximum portability period for Mrs Wong’s carer payment and carer allowance over the period of her absence from Australia was six weeks subject to the provisions of section 1218 of the Act. It is also not in contention that Mrs Wong and Marcus departed from Australia on 19 May 2013 and returned to Australia on 13 July 2013. This period exceeds the maximum portability period of six weeks.
Section 1218C of the Act provides an exception for full-time students. It is not relevant to Mrs Wong who is not a full-time student. However section 1218C prescribes general provisions for the extension of a person’s portability period (see paragraph 11).
Mrs Wong makes no contentions in regard to a serious accident (s.1218C(1)(a)) and I will not consider that issue further. At the hearing, Mrs Wong contended that her illness while in Thailand was serious (s.1218C(1)(b)). In her written submissions, Mrs Wong contended that she was hospitalised in the Buddhist monastery in Thailand (s.1218C(1)(c)).
Serious Illness
In regard to Mrs Wong’s claimed illness, I note there is no independent evidence corroborating her claims. There are no contemporaneous medical reports supporting her claim. The only medical evidence available comprises the reports by Dr Krishnamurthi (Exhibit A1) and Mr Kleynhans (Exhibit A4). Neither of these reports is based on an examination of Mrs Wong at the relevant time. Both reports were prepared at the request of Mrs Wong for the purposes of this hearing. In both reports, the history of her illness in Thailand is clearly a history related by Mrs Wong to the doctors. As a result, I do not accept that the reports provide independent corroboration of Mrs Wong’s account of her condition. I give the reports no weight in my consideration of Mrs Wong’s condition while in Thailand.
Mrs Wong’s evidence in paragraph 8 of Exbibit A2 is that she was fit enough on 11 June 2013 to travel 600 kilometres by coach to Bangkok and then on 12 June 2013 to travel to China. These dates are within the six-week portability period. Mrs Wong offered no evidence nor made any contentions that she was unable to return to Australia at this time because of any further illness. Indeed, Mrs Wong’s evidence was that she continued with her trip to China because she … would not allow any more nonsense came in between (sic) and my blood relatives in China (Exhibit A2) and she did not want to be controlled by Centrelink (oral evidence).
Her own evidence shows that, regardless of the degree of severity of her illness while in Thailand, Mrs Wong was fit enough to make an overseas trip as at 12 June 2013, a date still within the six-week portability period. As a result, I am not satisfied that at 12 June 2013 Mrs Wong was unable to return to Australia because of a serious illness.
At the hearing, Mrs Wong made no contentions regarding suffering an illness or being hospitalised while in China. However, there are a number of relevant references in her written submissions. They are:
·Next city, Chengdu, many things were bad again and we both had 2 days tummy bugs and was in bed until we had to get ready for the airport;
·Further more, I used respite in South China on the nights of 28, 29, 30 June, 1 & 2 July 2013 like my previous trips because I was not very tough for the Chinese environments and conditions;
·In China, Marcus and I … happened to see a doctor at my brother’s town who gave us some medicines. We also saw many pharmacists and bought medicines from them;
·It just happened that Marcus needed this care while I was seriously ill in Thailand and China; and
·While I was overseas 19 May 2913 [sic] – 13 July 2013 I used respites to care for Marcus due to my illness … from 28 June – 03 July 2013 while we were in China. (5 nights)
There is no evidence corroborating these statements. Furthermore I note Mrs Wong’s evidence that she and Marcus were able to fly from Kunming to Chengdu on 16 June 2013 in spite of many difficulties with taxis and accommodation. I note particularly that they were able to participate in day tours while in Kunming and Chengdu.
From Mrs Wong’s evidence, I am satisfied that Mrs Wong was able to travel on and around 16 June 2013. I am not satisfied that she was unable to return to Australia because of a serious illness while in China.
After considering all of the evidence I am not satisfied that Mrs Wong was unable to return to Australia within the portability period because of a serious illness (s.1218C(1)(b)).
Hospitalisation
In her submission S1, Mrs Wong implies that her stay in the Buddhist monastery was equivalent to hospitalisation. On page 7 she states:
The care for me at Suan Mokkg Monastery does not equate hospitalisation because it gave me much better care, in fact it was “Alternative medicine” which is the best care I or many people who really know and really understand could get.
On page 8 she states Suan Mokkh Monastery is better than any hospital. I accept these statements as contentions that she was hospitalised at the monastery and that this was a cause of her being unable to return to Australia.
However, Mrs Wong’s evidence is that by 11 June 2013 she was better and fit enough to travel to Bangkok and then on to China. It is therefore irrelevant whether or not the monastery can be classified as a hospital. Mrs Wong was clearly able to undertake overseas travel on 12 June 2013 and therefore at that date she was not unable to return to Australia due to hospitalisation.
In her submissions, Mrs Wong makes only one reference that could relate to hospitalisation while in China. In her submission S5, Mrs Wong claims she used respite from 28 June to 3 July 2013. She provides no evidence in support of this submission. There is no evidence of an admission to any identifiable institution that could be classified as a hospital. Nor is there evidence that her need for respite at that time was such that she was unable to return to Australia. Without some contemporaneous medical corroboration, I do not accept that Mrs Wong’s respite was equivalent to hospitalisation as required by the Act.
From the evidence I am not satisfied that Mrs Wong was unable to return to Australia because of hospitalisation of herself or any family member (s.1218C(1)(c)).
CONCLUSION
I am not satisfied that Mrs Wong was unable to return to Australia because of any of the events provided for in section 1218C of the Act. Indeed, the evidence is that Mrs Wong did not return to Australia within the maximum portability period as a result of her decision to visit her family in China in spite of knowing that she would exceed the portability period.
There are no other provisions in the Act to allow an extension to the portability period for Mrs Wong’s carer benefits.
I find that Mrs Wong’s circumstances do not meet any of the provisions for an extension of the portability period for her carer benefits. Accordingly, I do not extend the six-week period in her case.
Section 1215(1)(b) of the Act provides throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person. I find that the payments for Mrs Wong’s carer payment and carer allowance are not payable for the period of her absence from Australia as occurred after 30 June 2013. As a result Mrs Wong’s application is not successful.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 55 (fifty‑five) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member.
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Administrative Assistant
Dated 5 November 2014
Date of hearing
7 October 2013 Applicant By telephone Advocate for the Respondent Mr T de Uray, Centrelink Program Review and Litigation Branch
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