Xue and Secretary, Department of Social Services (Social services second review)
[2016] AATA 365
•1 June 2016
Xue and Secretary, Department of Social Services (Social services second review) [2016] AATA 365 (1 June 2016)
Division
GENERAL DIVISION
File Number
2015/5699
Re
Ji Xue
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E. A. Shanahan, Member
Date 1 June 2016 Place Melbourne The Tribunal affirms the decision under review. Mr Xue is to lodge an application for compensation under the Compensation for Detriment due to Defective Administration Scheme.
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Miss E.A. Shanahan, Member
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – portability of DSP – eligible medical treatment delivered overseas – treatment in China not recommended or overseen by a general practitioner – treatment received not eligible medical treatment – suspension of applicant’s DSP – decision affirmed – compensation for detriment caused by defective administration recommended.
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security and Other Legislation Amendment (Economic Security Strategy) Act 2008Compensation for detriment due to defective administration
Cases
Re Osmani and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605
Re Mouzaoui and Secretary, Department of Family, Community Services [2003] AATA 710Re Secretary, Department of Social Security and Wills [1998] AATA 400
REASONS FOR DECISION
Miss Anne Shanahan, Member
1 June 2016
Mr Xue qualified for the Disability Support Pension (DSP) on 4 July 2008. He had been assessed as having an impairment point rating of 35, 20 points of which had been allotted for post-traumatic stress disorder (PTSD) and 15 points for the effects of lumbar spinal and cervical spinal disc injuries. His work capacity was estimated as being zero to seven hours.
Details of Mr Xue’s travel outside Australia have not been provided but he left Australia on 1 February 2015 and returned on 1 March 2015, a total of 28 days. This overseas stay was entirely within the then operative portability provisions of the Social Security Act 1991 (the Act). He requested that his DSP be portable for the period 29 May 2015 to 26 July 2015 in order to obtain further medical treatment in China. Mr Xue left the country prior to Centrelink making a determination. This resulted in suspension of his pension from 29 May 2015.
Mr Xue sought review of this decision and it was affirmed by an Authorised Review Officer (ARO) of Centrelink on 5 June 2015. On 4 August 2015 he lodged an application for review of this decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (first tier review). On 14 October 2015 the first tier review affirmed the decision.
Mr Xue lodged an application for a second tier review by the Administrative Appeals Tribunal on 29 October 2015 and on the same day travelled to China for further medical treatment.
At the hearing Mr Xue was self-represented but assisted by Mr Bo Ai, an interpreter in the Mandarin language. The respondent was represented by Mr Cameron Munro of the Department of Human Services. The Tribunal was provided with the documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). Mr Xue gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
Mr Xue suffered a back injury in 1992 or 1993 when he slipped at work while lifting a heavy weight. As a result he developed L3/4 and L4/5 disc bulges or protrusions. He was working as a sheet metal worker at the time. Apparently Mr Xue was advised that he undergo surgical treatment but he refused and pursued conservative treatment measures.
In 1997 he spent some time in China having alternative medical therapy which resulted in marked improvement in his chronic back pain. During this period he was receiving worker’s compensation payments and eventually received a lump sum permanent impairment payment. Following his treatment in China he was so improved that he felt he should retrain in order to obtain employment. He undertook training in real estate sales, qualifying as an agent and then pursued this occupation for a period of three to four years. His commencement of employment as a real estate agent corresponded with increased investment from China and his ability to read, write and speak Mandarin were recognised as an asset in the real estate arena.
In 2003 he had been required to attend persons who were renting via the agency with whom he worked and had not been paying the required commission. His purpose was to arrange payment. While sitting in a chair discussing the matter he was attacked by two men. His chair was pushed backwards and overturned and he fell onto a concrete floor whilst still seated in the chair. He suffered further lumbar spinal and cervical spinal injury. Once more he received WorkCover payments for several years and a lump sum settlement which attracted a preclusion period in terms of receiving DSP and the need for him to actually pay back to the Department some of his DSP payment.
In addition to his physical injuries Mr Xue was diagnosed with PTSD arising from this attack. He qualified for the DSP on 11 June 2008. A Job Capacity Assessor (JCA) had recommended an impairment rating of 35 points, 20 points of which were for the PTSD and 15 points for his spinal disorders. His work capacity was calculated as being zero to seven hours. Once more Mr Xue availed himself of treatment in China.
As a result of changes/amendments to the Social Security Act 1991 with effect from 1 January 2014, the portability of DSP payments was reduced to 28 days in a 12 month period with various exceptions. The only exception applicable to Mr Xue’s matter is that relating to eligible medical treatment not available in Australia but recommended and overseen by an Australian medical practitioner. Eligible medical treatment has to be unavailable in Australia and can include non-therapeutic or non-proven treatments.
Mr Xue departed from Australia on 1 February 2015 and returned on 1 March 2015 having spent the intervening 28 days in China during which time he received Chinese medical treatment. This included what is entitled bloodletting through acupressure, radiant heat treatment to his body and limbs, joint aspiration treatment, scrape therapy which apparently resembles massage in some ways and cupping therapy. In addition to these physical therapies Mr Xue spent time with his close friends in China. Their support was of great benefit in relation to his PTSD.
Mr Xue contacted the Department on 6 May 2015 to advise he was to leave Australia on 29 May 2015 for further Chinese medical treatment and expected to return on 26 July 2015. He provided a report from his general practitioner outlining the treatment he was to receive. His general practitioner Dr Chan supported the treatment and stated that it was not available in Australia. He did not however state he was recommending it or that he would supervise it.
On 18 May 2015 the Department informed Mr Xue that his request to be paid the DSP while outside Australia was not approved as the treatment that he was to receive was not eligible medical treatment.
Mr Xue informed the Department that he had to go to China on 29 May 2015 because of a wedding he was to attend on 30 May. He also sent supporting documentation from his osteopath Dr Hubert advising that the treatment was required. Mr Xue was unaware that Dr Hubert was an osteopath and thought he was a qualified medical practitioner. Dr Hubert informed the Department that he had knowledge of some of the planned treatments which he believed were very effective but as he was not trained in this specialty he was not able to practice it, in accordance with Medicare requirements.
As Mr Xue left Australia on 29 May 2015, his DSP was suspended while he was overseas.
In his evidence before the Tribunal Mr Xue said that he had twice sought a face to face consultation with Centrelink officers prior to his departure to China as he wished to clarify the instructions he had been given and in addition had some doubts regarding his written abilities in the English language. Mr Xue said the Centrelink officer told him to buy his aeroplane ticket to China and once he had a set date and a confirmed booking to then seek permission to leave the country in order to obtain medical treatment in China. He did not receive any reply to his request and having spent money on his own ticket and had also paid for a return ticket for his 95 year old mother who has been in China for approximately 12 months. His mother has not been able to return as she had been assessed as being too unwell to fly. He had hoped that when he went in May 2015 she would be able to return with him.
Mr Xue clarified the finding that he had left Australia on 29 May 2015 in order to attend the family wedding. This he said was not the reason for his trip but as he was going overseas for medical treatment he was to also attend his cousin’s daughter’s wedding. He was unable to indulge in alcohol consumption as part of his Chinese medical treatment once he had started the course and therefore wished to go slightly earlier so he could participate in the wedding celebrations. Apparently, the intake of alcohol is prohibited during the course of treatment and there are other dietary restrictions imposed. On the completion of this treatment it was not possible for him to bring his mother back to Australia as she was again deemed unfit to travel. His mother is an Australian citizen.
Following his return to Australia and the suspension of his DSP, Mr Xue submitted several documents in Chinese describing the treatment he had received. While he himself had performed a Google internet translation of these he had asked Centrelink to check the translation through their translation services. He did not receive any response to this request. He also noted the documents were not included in the T-documents nor were his originally filed statements in Chinese returned. He lodged a complaint with Centrelink and this was corrected.
Mr Xue said he was never told that his Chinese medical treatment had to be recommended by an Australian registered medical practitioner.
Despite these experiences and the suspension of his DSP Mr Xue returned to China in October 2015 and again in January 2016. On both occasions he travelled in order to bring his mother back to Australia. This was not possible and the tickets he had purchased prior to his departure were therefore voided. In his last visit commencing in January 2016 he had sought medical treatment. As the clinic at which he had previously been treated had burnt down he had to find a new clinic. This clinic he says provides different treatment. Mr Xue described one aspect of the treatment that he had received as having an electric current passed from an electrode on his left wrist to his right foot as a means of identifying, in terms of the pain resulting, the site to which treatment was to be directed.
While Mr Xue benefited from this treatment he still has neck and back pain and he has noted that he has persistent and increasing muscle wasting in his upper limbs particularly, and pain and numbness in both feet and his hands. Despite this he finds that after the treatment he requires less medication in terms of pain control and relief from the constipation relating to his analgesic intake. He has recently been reviewed by two neurosurgeons and has been advised that he requires surgery.
The Tribunal has not been provided with the results of any medical imaging in the form of magnetic resonance imaging (MRI) of Mr Xue’s cervical and lumbar spine and the only reports available are those of Dr Hubert who states that Mr Xue has spinal degeneration of the L2-5 vertebra, Cervical Multilevel disc degeneration. Whether or not he has canal stenosis or any other evidence of nerve compression he has not provided.
The Centrelink entries relating to this matter are sparse and cover the period from January to June 2015.
EVIDENCE BEFORE THE TRIBUNAL
Mr Xue’s evidence has been summarised under BACKGROUND TO THE APPLICATION as has the sparse medical evidence.
RELEVANT LEGISLATION
Section 1215 of the Act as amended states:
1215 Some payments generally portable with time limit
(1)If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:
(a)throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;
(b)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.
Note:Section 1217 defines the person’s maximum portability period and portability period for the payment.
(2)This section is subject to Subdivision B of this Division (which contains exceptions) and section 1220.
Section 1217 of the Act provides that the maximum portability period for the DSP is four weeks but that additional periods can be granted for temporary absence to seek eligible medical treatment.
Section 1212 defines eligible medical treatment as:
... medical treatment of a kind that is not available to the person in Australia.
The Guide to Social Security Law states at 7.1.2.20 that:
Eligible medical treatment, in relation to a recipient, 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 registered 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.
If the recipient’s circumstances satisfy the eligible medical treatment criteria, then payments may continue for a specific negotiated period of no longer than the allowed portability period for the qualifying payment. The length of payment will be restricted to the period of time required to complete the treatment, including recuperation and any allowances that must be made for return travel.
SUBMISSIONS
The respondent relied on the submissions contained in its Statement of Facts and Contentions and in particular the authorities of Re Osmani and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 605 where the Tribunal found that medical treatment includes therapeutic treatment obtained at the direction of a qualified medical practitioner and in Re Mouzaoui and Secretary, Department of Family, Community Services [2003] AATA 710 where the Tribunal agreed with the decision in Re Secretary, Department of Social Security and Wills [1998] AATA 400 that medical treatment requires a diagnosis and treatment plan formulated by a qualified medical practitioner and conducted under his or her oversight, including some kind of review. The tribunal is satisfied that the legislative intent does not extend to self-treatment but does require some degree of oversight by a qualified medical practitioner.
In the Statement of Facts and Contentions the respondent challenged the therapeutic benefit and scientific basis of the various treatments that Mr Xue had been receiving. It was submitted that there was no medical evidence before the Tribunal concerning the treatment received by Mr Xue to its availability, its efficacy and appropriateness or its categorisation as medical treatment. The respondent had concluded that the treatment received by Mr Xue in China was not eligible medical treatment.
Additionally, no evidence had been presented that there was not similar or equivalent treatment available in Australia.
Mr Xue relied on his evidence before the Tribunal. He did agree that the basis of Chinese medical treatment which is now 2000 years old was not scientifically proven but in his experience was symptomatically effective.
TRIBUNAL’S DELIBERATIONS
Mr Xue clearly did not understand the legislative requirements when in May 2015 he sought approval for DSP portability for a period of eight weeks commencing on 29 May 2015, he having spent a period of four weeks in China receiving medical treatment ending on 1 March 2015. The scientific basis of the treatment he has been receiving is in doubt despite Mr Xue’s conviction that it is highly beneficial.
The treatment was not recommended by an Australian medical practitioner nor was it overseen by a medical practitioner. While the osteopath Mr Xue consulted in Australia (Dr Hubert) stated he had knowledge of the monometer ultraviolet heatwave therapy, he said it was not readily available in Australia. Dr Hubert personally had not undergone sufficient training in the technique for any practice in this area to attract patient Medicare rebate payments.
The treatment program undertaken by Mr Xue in China does not meet the definition of eligible medical treatment as provided in the Guide to Social Security Law (the Guide) referred to above.
In Re Osmani and Re Mouzaoui the Tribunal stressed the requirement of the making of a diagnosis and the formulation of a treatment plan by a medical practitioner and the conduct of that plan under the supervision or review of the medical practitioner. While this Tribunal is not bound by the policy guide (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634) they are in this instance sound and should be followed.
The Tribunal affirms the decision under review.
However, it is clear that before departing Australia Mr Xue was concerned that his command of written English was such that he feared he might misinterpret the advice provided to him by Centrelink. He twice requested face to face appointments to clarify his concerns but received no response. It is not known if Centrelink were aware of Mr Xue’s 95 year old mother’s plight, she having travelled to China with her son in late 2014 but because of health issues had not been accepted for return flight to Australia. She remains in China.
In October 2015 and again in March 2016 Mr Xue’s efforts to accompany his mother back were thwarted by her health status and he has forfeited the cost of two return airfare tickets for his mother.
It is recommended by both the Tribunal and Mr Munroe who appeared for the Respondent that Mr Xue lodge an application under the Compensation for Detriment due to Defective Administration Scheme (CDDA Scheme).
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member ........................................................................
Associate
Dated 1 June 2016
Date of hearing 18 April 2016 Applicant In person Advocate for the Respondent Cameron Munro
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