York and Secretary, Department of Social Services (Social services second review)
[2016] AATA 802
•13 October 2016
York and Secretary, Department of Social Services (Social services second review) [2016] AATA 802 (13 October 2016)
Division
GENERAL DIVISION
File Number(s)
2016/2481
Re
David York
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 13 October 2016 Place Sydney The decision under review is affirmed.
...................................[sgd].....................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – extension of portability period – whether an event prevented the applicant from returning to Australia – applicant travelled to India for leg lengthening and correction procedure – hospitalisation and recovery found to be events preventing return – whether the hospitalisation and recovery occurred or began during period of absence – event of procedure initiated before period of absence – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 1217, 1218C
CASES
Belal and Secretary, Department of Social Services [2015] AATA 1006
Majidi and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 309
Manolev and Secretary, Department of Family and Community Services [2005] AATA 398
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29
SECONDARY MATERIALS
Guide to Social Security Law 7.1.2.10
REASONS FOR DECISION
Dr L Bygrave, Member
13 October 2016
INTRODUCTION
The applicant, Mr David York has received the disability support pension since 2010.
On 2 October 2015, Mr York departed Australia for India. Mr York had surgery for ‘limb lengthening and correction’ to ‘his left and right femurs’ at the Ashwinii Accident Hospital and Polyclinic in Mumbai, India on 14 October 2015.[1]
[1] Exhibit T6.
Mr York’s disability support pension was suspended on 30 October 2015 because he remained overseas in excess of the four week portability period prescribed by the Social Security Act 1991 (Cth) (the Act). Mr York returned to Australia on 22 December 2015 and his disability support pension was reinstated.
Mr York contacted Centrelink on 20 October 2015 to request ‘portability extension of [his] disability support pension while overseas in India through to early 2016’.[2] This request was rejected by Centrelink, both initially and on internal review, on the basis that the evidence provided by Mr York did not demonstrate his circumstances were not unplanned or unforeseen.
[2] Exhibit T13, p 100.
On 23 April 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed the decision of the Secretary to reject Mr York’s request for an extension to his portability period.
Mr York applied to the General Division of the Tribunal on 11 May 2016 for a review of the SSCSD decision.
The matter was heard in Sydney on 27 September 2016. Mr York attended the hearing in person and was self-represented.
RELEVANT LEGISLATION AND ISSUES
Part 4.2, Division 2 of the Act sets out the provisions for portability of social security payments. Relevantly, s 1217 (item 2AA) provides that a person’s maximum portability period for the disability support pension is four weeks. As Mr York departed Australia on 2 October 2015, the portability period for his disability support pension ended on 30 October 2015.
Pursuant to s 1218C of the Act, a person’s portability period may be extended:
1218C Extension of person’s portability period–general
(1)The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
…
(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;
…
(2)The Secretary must not extend the person’s portability period under subsection (1) unless:
(a) the event occurred or began during the period of absence; and
…
(3)If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period. [emphasis added]
For s 1218 of the Act to be enlivened in relation to extending Mr York’s portability period, the Tribunal must determine whether:
(a)Mr York was unable to return to Australia because of an ‘event’; and
(b)the event occurred or began during the period of absence.
Was Mr York unable to return to Australia because of an ‘event’?
Section 1218C of the Act requires the Secretary (and therefore the Tribunal on review) to be satisfied that Mr York was unable to return to Australia because of an ‘event’, which may include a serious illness and/or hospitalisation.
Section 7.1.2.10 of the Guide to Social Security Law (the Guide) sets out the general rules of portability as follows:
Reasons for allowing a discretionary extension
A discretionary extension may be allowed where the delegate is satisfied a recipient is prevented from returning to Australia before the end of the portability period. The reasons for allowing a discretionary extension are specified in SSAct section 1218C …
… The event preventing the person’s return to Australia must be extreme or of an emergency nature and must have occurred or begun during the allowable portable period… [emphasis added]
I refer to the Tribunal decision in Belal and Secretary, Department of Social Services (Belal), which observed that s 1218C of the Act does not include the phrase ‘prevented from returning’ nor state a requirement that an event ‘must be extreme or of an emergency nature’. I concur with the decision in Belal that the Guide appears to have ‘changed the intent of s 1218C and raised the threshold for the application of the discretion’.[3]
[3] [2015] AATA 1006 at 41-42.
I also have regard to the Federal Court decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis in which Gray J stated:
It is true, as the primary judge pointed out, that s 1218C is a remedial provision. The principle that such a provision should be construed liberally is indisputable.[4]
[4] [2012] FCAFC 29 at 29.
His Honour further stated in relation to the phrase ‘unable to return’:
It is easy to accept the proposition that s 1218C(1) does not require that the event make it impossible for a person to return to Australia. Practical inability to return, owing to the circumstances created by the event, will be sufficient.[5]
[5] [2012] FCAFC 29 at 32.
A report by Dr Suhas Shah (Consultant Orthopaedic Surgeon at the Ashwinii Accident Hospital) dated 17 October 2015 stated that Mr York underwent surgery on 14 October 2015 for ‘limb lengthening and correction by means of PRECICE intramedullary nails within his left and right femurs which have been severed’. He noted that Mr York was currently bed bound, hoping to progress to a wheelchair, receiving daily physiotherapy and will commence lengthening in the next seven days. Dr Shah also set out that Mr York had paid a $US5,000 refundable deposit for an external magnetic controlling unit ‘which may only be claimed back while he is in India’.[6]
[6] Exhibit T6.
A further report by Dr Shah dated 4 November 2015 detailed Mr York’s progress with lengthening of PRECICE intramedullary rods within both femurs from 21 October. He also set out that:
In accordance with [his treatment] plan along with the conditions on the PRECICE import license and distributor’s service guarantees (that are expressed to be inapplicable outside of India) I have instructed him that he is precluded from air travel, as well as absence overnight from the city, for a minimum of 6 weeks from the present.[7]
[7] Exhibit T12.
Dr Shah also reported on 21 July 2016 in relation to Mr York’s prospects of returning to Australia within four weeks of his arrival in Mumbai in October 2015:
My opinion is that it was possible and achievable although it was not ideal and I advised against it to the extent of expressing caution about his fitness for travel as he continued under the treatment plan which I supervised through to his eventual departure on 22 December.
…
I offered him admission as an inpatient on 13 October for surgery the following day. I informed him that his discharge could not occur until about a week after surgery and that if he required to travel by air it would also require the carrier to accept his confinement to a wheelchair and the possibility of his legs being bound horizontally in plaster casts. He therefore may have chosen to travel by air, including to Australia from India, in a manner that would not involve the carrier seeking my medical clearance. That would have been at the most optimistically early date of 23 October 2015.[8]
[8] Exhibit A2.
At the Tribunal hearing, Mr York stated that he travelled to India on 2 October 2015. He was admitted to the Ashwinii Accident Hospital on 13 October 2015, underwent surgery on 14 October 2015 and was discharged from the Hospital ‘seven to ten days later’. He then stayed at a hotel and was visited by a physiotherapist every couple of days. He had x-rays every two weeks at the Hospital and remained under the care of Dr Shah until he returned to Australia on 22 December 2015.
Mr York told the Tribunal that, prior to leaving Australia and having the operation, he had considered that it was possible for him to have the surgery to lengthen his femurs and return to Australia within a four week period. He said that, on the advice of Dr Shah, he realized that this would not be possible after he had the operation as he was confined initially to a bed and later to a wheelchair.
Mr York confirmed that he could lose his $US5,000 refundable deposit for the external magnetic controlling unit if he left India. Dr Shah, in his letter dated 21 July 2016, also noted that the external magnetic controlling unit, which was required for the procedure, was unable to be serviced in Australia.[9] While I accept that there may have been a financial loss to Mr York if he lost his deposit, I do not find that this was the primary reason that he remained in India after his surgery.
[9] Exhibit A2.
On the basis of the evidence before me, I am satisfied that Mr York’s hospitalisation from 13 October to approximately 21-23 October 2015 and his subsequent recovery in a hotel (a ‘serious illness’) are events as defined in subs 1218C(1)(b) and (c) of the Act. I am also satisfied that, given the serious nature of the operation which required his left and right femurs to be severed and his subsequent confinement to a bed and wheelchair, Mr York was unable to return to Australia.
Did the event occur or begin during the period of absence?
Pursuant to s 1218C(2) of the Act, Mr York’s portability must not be extended unless the event occurred or began during the period of absence.
The Secretary contended that Mr York’s operation and hospitalisation was pre-planned in Australia. After Mr York was discharged from hospital on around 21-23 October 2015, the relevant ‘event’ for the purposes of s 1218C was a ‘serious illness’.[10]
[10] Secretary’s Statement of Facts and Contentions dated 23 August 2016, paras 5.4-5.5.
I have regard to the Tribunal’s decision in Manolev and Secretary, Department of Family and Community Services, which stated:
… the intention was that granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would be over in a short period of time and the person involved would be able to return to Australia. [emphasis added][11]
[11] [2005] AATA 398 at 30.
In Majidi and Secretary, Department of Education, Employment and Workplace Relations, the Tribunal noted that the intention of s 1218C is to ‘address serious circumstances which befall a social security beneficiary such that an individual is unable to return to Australia’ within the portability period. [emphasis added][12]
[12] [2011] AATA 309 at 18.
At the Tribunal hearing, Mr York stated that he had been considering surgery to lengthen his upper legs since at least January 2015. This is confirmed in a medical report for mobility allowance review by Dr Peter Parras dated 29 January 2015, which stated Mr York has the following physical disabilities: ‘Bilateral leg lengthening operation which requires further time for recovery or further surgery’.
Mr York also told the Tribunal that he had undertaken research on limb lengthening surgical procedures, which included seeing doctors in Australia who were not willing to operate on his legs because his disability was not sufficiently pronounced. He subsequently undertook research on the possibility of having the surgery in China or India.
A letter from Dr Shah dated 13 July 2015 set out that his patient, David York, will bear the cost of importing PRECICE for correction of limb deformity. Mr York told the Tribunal that he had paid a refundable deposit of $US5,000 to Cure Surgicals for the Elipse Precice Limb Lengthening System ‘sometime between July and October 2015’. He had planned appointments to see Dr Shah at the Ashwinii Accident Hospital in early October 2015.
Mr York told the Tribunal that he travelled to India in October 2015 on a tourist visa because a medical visa was more expensive. He only purchased a one-way ticket to Mumbai because he did not know what would transpire.
Based on the evidence before the Tribunal, I am satisfied that the intention of Mr York’s travel to India was to have surgery to lengthen his legs. As such, the event of his surgery was initiated before his period of absence. I find that Mr York’s hospitalisation and any subsequent ‘serious illness’ as he recovered from this surgery was not unexpected and did not befall him given the serious nature of the operation.
I am therefore not satisfied that the requirements of s 1218C(2) were met. Accordingly, Mr York’s portability of his disability support pension must not be extended.
DECISION
The decision under review is affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member .................................[sgd].......................................
Associate
Dated 13 October 2016
Date(s) of hearing 27 September 2016 Applicant In person Solicitors for the Respondent Department of Human Services
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