Welcker and Secretary, Department of Social Services (Social services second review) - [2019] AATA 1566

Welcker and Secretary, Department of Social Services (Social services second review) [2019] AATA 1566 (27 June 2019)
Division:GENERAL DIVISION
File Numbers: 2018/6552 and 2018/6554
Re:Mr Horst Welcker
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor P A Fairall, Senior Member
Date:27 June 2019
Place:Sydney

The Tribunal affirms the decisions made by the Respondent and affirmed by the Tribunal on 20 September 2018 as follows:
(a)A decision of the Authorised Review Officer made on 20 August 2018 to suspend the Applicant’s Sickness Allowance for the period 25 September 2017 to 12 December 2017; and
(b)A decision of the Authorised Review Officer made on 14 June 2018 to raise and recover a Family Tax Benefit (FTB) debt of $624.12 for the period 25 September 2017 to 5 November 2017.

............................[sgd]...........................
Professor P A Fairall, Senior Member
CATCHWORDS
SOCIAL SECURITY – suspension of Sickness Allowance – limited portability period – whether applicant entitled to the portability provisions under section 1217 of the Social Security Act 1991 – meaning of the term “eligible medical treatment” – whether applicant’s temporary absence from Australia was for the purpose of seeking eligible medical treatment of a kind that is not available in Australia – decision under review affirmed
SOCIAL SECURITY – Family Tax Benefit debt owed to the Commonwealth – whether the applicant was entitled to receive Family Tax Benefit while overseas – whether the applicant provided ongoing care and maintained involvement in the day-to-day decision-making of his son while overseas – whether debt should be recovered, waived or set aside – decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 71A
Social Security Act 1991 (Cth) ss 1212, 1217
CASES
Bloomer and Repatriation Commission [2018] AATA 308
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Kemp v Medical Board of Australia [2016] VCAT 290
Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286
Mayne, Peter [2017] NSWMPSC 3
Osmani and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605.
R v Bodnar [2018] NSWDC 76
SECONDARY MATERIALS
Guide to Social Security Law
Medicare Levy Amendment (Excess Levels for Private Health Insurance Policies) Bill 2018
REASONS FOR DECISION
Professor P A Fairall, Senior Member
27 June 2019

This is an application for second review of decisions made by the Respondent and affirmed by the Tribunal on 20 September 2018 (see 2018/S123582 & S125843):
(a)A decision of the ARO made on 20 August 2018 to suspend the Applicant’s Sickness Allowance for the period 25 September 2017 to 12 December 2017; and
(b)A decision of the ARO made on 14 June 2018 to raise and recover a Family Tax Benefit (FTB) debt of $624.12 for the period 25 September 2017 to 5 November 2017.
According to the Applicant’s second review application the “main issue is the cancellation of my sickness allowance when I was overseas receiving medical treatment not available in Australia”.
The Sickness Allowance
The Social Security Act 1991 (“the SSA”), provides that certain social security payments are portable. In relation to the Sickness Allowance, a temporary absence from Australia not exceeding 6 weeks is permitted without loss of entitlement for the purpose of seeking “eligible medical treatment”, defined in s 1212 to mean “medical treatment of a kind that is not available to the person in Australia”: ss 1212 and1217.
It is not disputed that for much of 2017 the Applicant was eligible to receive a Sickness Allowance due to a chronic health condition. In September 2017, the Applicant travelled to the United States to visit a treatment clinic, the Life Works Wellness Centre in Clearwater, Florida. He was away for some 11 weeks, from 25 September 2017 to 12 December 2017. The Secretary has determined that he should not receive a Sickness Allowance otherwise payable for this period. The Applicant asserts that his purpose in travelling to the United States was to seek medical treatment of a kind that is not available in Australia, and thus he is entitled to the benefit of the portability provisions contained in s 1217 of the SSA. Counsel for the Respondent argued that there is insufficient evidence that the Applicant suffered from a disease that was not treatable in Australia. He noted that the Applicant was in fact diagnosed with Chronic Fatigue Syndrome, and that this condition was readily treated in Australia.
The Applicant gave evidence that he had been in a state of poor health for several years, and that during 2017 his health progressively deteriorated. He believed that his health problems were associated with a tick-bite suffered some 5 years before whilst he was working as a landscape gardener. He says that he removed the tick by pulling it out, leaving the head imbedded. He later experienced symptoms of pain, lethargy, and chronic fatigue. In the course of exploring various treatment options he came to believe that he was suffering from Lyme disease. There is no reason to doubt the sincerity of his belief, unsupported as it is by a firm clinical diagnosis based on laboratory testing.
According to Mosby’s Medical Dictionary, Lyme disease is an:
Infection caused by the spirochaete Borrelia burgdorferi, transmitted by the bite of infected Ixodes ticks (which are far smaller than dog ticks). The infection is found in North America and Europe. It is probably not present in Australia, although there is controversy on this issue….Early stage symptoms of Lyme disease are fatigue, fever, chills, headache, muscle and joint pain, lymphadenopathy and a characteristic skin rash, erythema migraines. Laboratory tests for infection and disease have not been fully standardised. Treatment consists of oral or IV antibiotics.
A central aspect of the Applicant’s claim for portability is that he was not able to obtain treatment for contagion caused by tick-bite despite his best efforts. He argues that appropriate treatment was not available. He says that his failure to obtain effective treatment is directly related to the medical consensus in Australia regarding Lyme disease. He provided extensive materials relating to the supposed controversy concerning Lyme disease in Australia, including a Senate inquiry into the disease, a follow up Forum organised by the Department of Health to consider the Australian Government’s response to the Senate Report, medical research projects, newspaper reports featuring struggling patients, and disciplinary proceedings brought against Lyme treating doctors.[1]
[1] Exhibits A1-A5.
He also referred to an email exchange in 2018 with someone from the Lyme Disease Association, resulting in his receipt of a generic letter (personalised only to the extent that he was named as the addressee) containing general advice about Lyme disease, referring to the difficulties some had experienced in trying to obtain diagnosis and treatment in Australia, and recommending that those suffering from symptoms associated with Lyme disease seek treatment overseas.[2]
[2] T-Documents, T26 at p. 142.
Some of these materials post-dated his travel to the United States. They were however tendered to support his claim that at the time he left for Florida he was experiencing the difficulties traversed in these reports. Therefore, he said, the treatment he sought was of a kind that was not available to him in Australia.
Unfortunately, the Tribunal was not presented with a comprehensive medical record of treatment received prior to his departure to the United States. He submitted pathology reports dated 3 July 2017 from the Australian Rickettsial Reference Laboratory Foundation Ltd.[3] Unfortunately, no medical evidence was put to the Tribunal as to the significance of these reports and it is not possible to extract from them in layman’s terms a diagnosis of Lyme disease. Indeed, according to the explanatory notes on the Reports, the contrary is indicated.
[3] Exhibit A6.
The essence of the Applicant’s case, taken at its highest, is that he is a victim of unfortunate circumstances and the intransigence of the Australian medical profession. As noted above, he tendered voluminous material to support this theory. At the hearing he said that doctors had been penalised for recommending Lyme’s disease, and that he believed that his own general practitioner, Dr Nihad Jackson, had been reluctant to diagnose Lyme disease (although, as noted below, it appears that she had recommended a check for Lyme disease). Some of this evidence was the subject of intense cross-examination by counsel for the Respondent. The following is an example:
Counsel: You said doctors have had their licence cancelled if they had Lyme disease.
Applicant: Yes, for example, Dr Mayne. He treated many people for Lyme disease. His medical licence was cancelled by the medical board.
Counsel: Did you read it or was it told you?
Applicant: I was told it.
Counsel: Do you want to withdraw the statement that they have had their license cancelled for mentioning Lyme disease?
Applicant: Yes.
Counsel for the Respondent disputed the claim made by the Applicant that doctors have been disciplined for diagnosing Lyme disease or Lyme-like symptoms. However, the Tribunal is not persuaded that the Applicant was unjustified in referring to disciplinary proceedings against Lyme treating doctors as a basis for his belief that the Australian health authorities had a negative attitude towards Lyme disease treating doctors. Various aspects of the diagnosis and treatment of Lyme disease have featured in disciplinary proceedings in recent times: see Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286; Kemp v Medical Board of Australia (Review and Regulation) [2016] VCAT 290; Mayne [2017] NSWMPSC 3.
There is no doubt that the existence and transmission of Lyme disease in Australia is the subject of considerable medical controversy. In Bloomer and Repatriation Commission (Veterans’ entitlements) [2018] AATA 308 at [25] the Tribunal went so far as to state that “Lyme disease is not known to be present in Australia”. In Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286, at [1], the Queensland Civil and Administrative Tribunal noted:
The existence, diagnosis and treatment of Lyme disease are matters of considerable controversy within the medical profession in Australia. Views are greatly divided as to whether there even exists an indigenous Lyme Disease in this country.
On 4 September 2017, just before his departure to the United States, the Applicant tendered an on-line claim for Sickness Allowance with the Department.[4] On 5 September 2017, his general practitioner, Dr Jackson, completed a Medical Certificate in support of his claim.[5] Under the heading “Diagnosis”, Dr Jackson noted: “Fatigue, tiredness ...shortness of breath with minimal effort,... Abdo pain, ch Lyme disease” (emphasis added). Under “Symptoms”, she wrote “As above, has had multiple hospital presentations. Saw many specialists in different fields - Cardiologists, Gastroenterologists, EM ..., infectious diseases specialists”. Under “Prognosis”, she ticked the box for “Uncertain”. In relation to “Fitness to Work” she granted a period of absence from 5 September 2017 to 5 December 2017.
[4] T-Documents, T6 at p. 64.
[5] T-Documents, T6 at p. 69.
The Applicant candidly admitted that by September 2017 when he saw Dr Jackson he had resolved to travel to the United States to seek treatment no matter what. The reference to Lyme disease in Dr Jackson’s report did not precipitate his decision. He had already set his compass to that course. Indeed, he did not challenge the assertion made by counsel for the Respondent that at the time of his departure for the United States he did not have any medical report from any Australian medical practitioner that he was suffering from Lyme disease. At the most, there was a reference by Dr Jackson to check Lyme disease as a possible cause of his symptoms.
On 7 September 2017, the Applicant made arrangements to travel to the United States, departing on 25 September 2017.[6] The Applicant gave evidence that he used a wheelchair to navigate Sydney airport due to his medical condition, although he did not use a wheelchair upon his arrival in Florida.
[6] T-Documents, T9 at p. 83.
At the hearing, counsel for the Respondent asked the Applicant why he chose to attend the Life Works Wellness Centre in Clearwater, Florida, run by Dr David Minkoff. He said that he had discussed his illness with a friend whose daughter was undergoing treatment there. The friend suggested that he attend the Centre. As a result, he made some further enquiries on the internet and resolved to go there. Counsel drew his attention to various negative items on the internet, including a reference to disciplinary action against Dr Minkoff brought in 2001 by the Department of Health, Board of Medicine in the state of Florida (Case No 00-0023), and a connection with the Church of Scientology. The Applicant said he was unaware of any of that. His research did not reveal anything reflecting on the professional standing or competence of Dr Minkoff. The Tribunal notes in passing that, at least in June 2019, the items referred to by counsel for the Respondent are immediately accessible on the internet.
On 2 October 2017 the Applicant submitted a letter from Dr Minkoff to the Department.[7] The letter states:
Mr Welcker was seen in our clinic on 10/2/2017 [American notation]. He has complaints of tachycardia, chest pain, abdominal pain, and chronic fatigue. He has had these symptoms for 5 years within the last 8 months being severe. He has a long history of chronic illness.
Since Feb 2017 his condition has worsened requiring multiple emergency room admissions and preventing Mr Welker from doing any work or having a normal life.
Upon examination and testing I have diagnosed him with Chronic fatigue, Chronic Pain, Fibromyalgia, Mercury Toxicity, Bartonellosis and Rickettsial (Spotted and Typhus Fevers) infection. Our clinic specialises in chronic health conditions and we have the expertise and treatments required to help Mr Welker.
Signed David I Minkoff M.D.
[7] T-Documents, T4 at p. 63.
The Applicant provided evidence regarding the cost of the proposed treatment to be provided by the Wellness Centre. He tendered an initial quotation for US$18,352.45 rendered on 2 November 2017[8] and subsequent invoices for US$4,252.50 dated 22 November 2017;[9] US$2,287.75 dated 4 December 2017;[10] and US$568.65 dated 7 December 2017.[11] The total amount of these charges is US$25,461.35, an amount well over AUS $35,000. In addition, he expended some $1,628.36 on airfares.[12]
[8] T-Documents, T9 at p. 81.
[9] T-Documents, T10 at p. 86.
[10] T-Documents, T11 at p. 89.
[11] T-Documents, T11 at p. 90
[12] T-Documents, T9 at p. 78.
The Applicant was asked by counsel about his motivation for deciding upon this expensive off-shore venture. He said that he was convinced that the tick bite was the original cause of his ill-health. He believed that the symptoms he had experienced pointed to Lyme disease. He felt stymied and frustrated by the Australian medical profession. He thought he could get help from Dr Minkoff.
No evidence was given as to whether at the time of the hearing this treatment has been paid for. It was not contested that the treatment received by the Applicant could be properly characterised as medical treatment, and no question was raised as to whether naturopathy is properly characterised as medical treatment within s 1217 of the SSA. It is perhaps surprising that this aspect was not explored more deeply at the hearing. The risks of some alternative treatments are very real: see for example R v Bodnar [2018] NSWDC 76. The Tribunal is also aware of steps taken to remove naturopathy and homeopathy from the general treatment products supported by the Private Health Insurance Rebates scheme following a review by the former Commonwealth Chief Medical Officer, who found that there was no clear evidence supporting the therapeutic value of such therapies: see Medicare Levy Amendment (Excess Levels for Private Health Insurance Policies) Bill 2018.
One aspect of the treatment received by the Applicant at the Wellness Centre has been the subject of some controversy. The treatment included the insertion of a peripherally inserted central catheter (PICC) for the administration of a prolonged course of antibiotics. The use of a PICC line without appropriate therapeutic support has been the subject of disciplinary proceedings: see Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286. Extreme care is required in the insertion of the PICC, which must be done in a sterile operating environment. Apparently, the Applicant did receive this very treatment at the Centre which resulted in the need for further treatment upon the Applicant’s return to Australia.
Section 1217 involves a subjective element insofar as the Tribunal must be satisfied that the claimant’s purpose in travelling overseas was to seek medical treatment. Counsel for the Respondent noted that the section also contains an objective element, flowing from the requirement that the medical treatment sought must be “eligible”, that is, of a kind that is not available to the recipient in Australia.
Eligible medical treatment is defined in the Social Security Guidelines as follows:
Eligible medical treatment means medical treatment of a kind that is not available to the recipient in Australia. It could include specialised or new types of surgery such as transplants or other kinds of treatment. Such a determination would be guided by the opinions of Australian medical practitioners. However, treatment does not necessarily satisfy the definition of eligible medical treatment just because a doctor approves or recommends the treatment. For example, iridology, herbal treatment, faith healing and similar treatments are not considered to be eligible medical treatment.
The Tribunal is vested with authority under s 43 of the Administrative Appeals Tribunal Act 1975 to make the correct or preferable decision. In reviewing an administrative decision the Tribunal is in a different position from the primary decision-maker who is duty bound to apply government policy where applicable. In seeking to make the correct or preferable decision the Tribunal is required to consider the substance of the policy and whether it imposes a lawful or reasonable constraint upon the legitimate exercise of administrative power. It is likely that in most cases the correct outcome will be found by the application of policy, provided the policy does not detract from, contradict or nullify the legislative intent. As noted by the learned President of the Tribunal, Brennan J, as he then was, in Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179:
Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if Parliament has in fact scrutinized and approved that policy.
If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides. To depart from Ministerial policy thus denies to Parliament its ability to supervise the content of the policy guiding the discretion which Parliament created. On some occasions, reasons may be shown to warrant departure from Ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete.

While the Tribunal is unconstrained by the strictures of policy statements in pursuit of the correct or preferable decision, consistency is an important aspect of good administrative decision-making. While the Tribunal is not bound by its own decisions, good government requires that like administrative decisions should be treated alike. Only cautious and sparing departures from pre-existing policy should be made and then only for good reasons.
Counsel for the Respondent pressed strongly for the proposition that for treatment to be “eligible treatment” there must be a determination from an Australian doctor that the treatment sought overseas is of a kind that is not available to the claimant in Australia. He argued that in nearly all cases a positive personalised diagnosis from an Australian doctor would be the starting point, although he conceded that in some cases a person might be referred offshore for medical assessment and treatment even in the absence of a positive diagnosis. He conceded that the “definition” of eligible medical treatment contained in the Social Security Guide is not binding on the Tribunal: see Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179. But he argued that there are good reasons why the policy should be implemented.
When pressed, counsel for the Respondent conceded that a specific referral to a treating overseas physician was not required. He argued however that at the very least there must be a determination from an appropriately qualified doctor that the patient required treatment that was not available locally. This would require a proper medical diagnosis.
The Tribunal is required to consider whether the medical treatment received by the Applicant at the Life Works Wellness Centre in Florida was “eligible medical treatment” within the meaning of s 1217 of the SSA, and as that expression is explicated by the Social Security Guidelines. The policy contained in the Guidelines states that the determination as to whether medical treatment is of a kind that is not available to the recipient in Australia should be guided by the opinions of Australian medical practitioners. In this case there was no opinion to that effect before the Tribunal. The Tribunal is therefore bound to consider whether the material presented by the Applicant relating to the supposed controversies surrounding Lyme disease in Australia provide a sufficient ground to depart from the stated policy contained in the Guidelines.
The Tribunal accepts that there is a hotly contested controversy about Lyme disease in Australia. The Tribunal accepts that this debate (to use a neutral expression) may have complicated the Applicant’s efforts to find relief from his symptoms. However, the Tribunal is not persuaded that these factors provide sufficient grounds for departing from the stated policy contained in the Guidelines.
The Tribunal is not unsympathetic to the Applicant. He has expended substantial sums in America in search of a cure, which he can ill afford, given his income and child support obligations. The Tribunal appreciates that he sees himself as providing a public service by shining a torch on the difficulties experienced by patients struggling with such symptoms. However, this Tribunal is certainly not the most appropriate forum to conduct a public awareness campaign regarding this issue.
The material before the Tribunal relating to the Applicant’s medical condition is patchy and uncertain. There does not appear to be a diagnosis of any condition, other than possibly chronic fatigue syndrome, a condition readily treatable in Australia. The Tribunal is especially troubled by the fact that there was no recommendation from the Applicant’s own doctor, who would be best acquainted with his case and his extensive medical history, and owe a professional duty to him, in favour of any specific treatment overseas, let alone the expensive treatment offered by the Life Works Wellness Centre operated by Dr David Minkoff.
It appears that the Applicant decided to travel to the Centre in Florida entirely of his own volition. Worried about his declining health, he resorted to self-diagnosis and relied upon a positive recommendation from a friend. This took him to the Life Works Wellness Centre in Florida, operated by Dr David Minkoff MD, a doctor with connections to Scientology, and whose medical licence, as noted above, had been once suspended for malpractice.
The Tribunal considers that there are good reasons for accepting the arguments made by counsel for the Respondent and applying the Guidelines in this case. The Tribunal should be slow to depart from a departmental policy which appears on its face to be well adapted to ensuring that those seeking offshore medical treatment are not exposed to exploitative, sub-standard or experimental health treatments that would not be accepted in Australia. Such persons are frequently sick and vulnerable. A degree of paternalism may be called for in pursuit of the greater good. The Applicant’s claim, if successful, may well detract from the high standards of health care provided by the medical profession and expected by the Australian community.
This is not to disparage the standard of medical care in other countries, nor to give the Australian medical profession some exalted and unchallengeable status. Nor is it to call into question the difficulties experienced by the Applicant in coping with his medical symptoms. Nor to add in any way to the growing debate on the contentious topic of vector borne illnesses such as Lyme disease. As the material tendered by the Applicant amply demonstrates, there is growing and timely awareness in Australia of the problems associated with such diseases.
The Tribunal refuses the Applicant’s claim to Sickness Allowance for the period 25 September 2017 – 12 December 2017, and affirms the decision of the Secretary.
Payment of Family Tax Benefit debt
The Secretary has also determined that the Applicant was not entitled to receive any Family Tax Benefit (“FTB”) part payment while overseas pursuant to s 71A of the A New Tax System (Family Assistance) Act 1999 (“Family Assistance Act”). A repayment of $624.12 is sought. The basis for that decision is simply that the Applicant was not, during the period of absence, providing care for his child pursuant to ss 22(2) and 22(5) of the Family Assistance Act. The Applicant pointed out that he paid child support at a rate higher than required given that he was on a Sickness Allowance. The mere payment of child support cannot support a claim of FTB where the factual elements of care are not present: see Osmani and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605. The Applicant was unable to point to any additional conduct on his part that might establish the necessary elements of care required to support a claim for FTB. The Applicant submitted that the combination of phoning his son on a regular basis and maintaining his child support obligations at a higher than required rate meant that he was entitled to receive a proportionate share of the Family Tax Benefit. However, the Applicant did not provide evidence of the frequency or purpose of the telephone calls, apart from staying in touch and thus reinforcing a father-son bond. He did not provide evidence of interactions from which the Tribunal could infer that he was discharging care obligations of the kind required to sustain his claim for FTB. Overall, the case falls well short of those cases where an absentee parent has been able to demonstrate a level of ongoing care and involvement in day to day decision-making so as to be entitled to the payment of FTB, of which Osmani is an example. The Tribunal affirms the decision by AAT1 relating to FTB.
Decision
The Tribunal affirms the decisions made by the Respondent and affirmed by the Tribunal on 20 September 2018 as follows:
(a)A decision of the ARO made on 20 August 2018 to suspend the Applicant’s Sickness Allowance for the period 25 September 2017 to 12 December 2017; and
(b)A decision of the ARO made on 14 June 2018 to raise and recover a Family Tax Benefit (FTB) debt of $624.12 for the period 25 September 2017 to 5 November 2017.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Professor P A Fairall, Senior Member

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Associate
Dated: 27 June 2019

Date of hearing: 12 June 2019

Date final submissions received:

Applicant:

18 June 2019

In person

Solicitor for the Respondent: Dr S Thompson, Department of Human Services