Young and Secretary, Department of Family and Community Services

[2004] AATA 392

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 392

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  T2003/61

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STANLEY YOUNG

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  Miss Mary Imlach (Senior Member)

Date 19 April 2004

Place Hobart

Decision THAT the decision made by Centrelink on 13 September 2001 not to extend the applicant’s disability support pension period thus cancelling his disability support pension is affirmed.

[Sgd Mary Imlach]

Senior Member    

CATCHWORDS

Social Security – disability support pension – portability period – deep vein thrombosis severely disabled.

Social Security Act 1991 – ss1213A(1), 1218C(1) and (2)

REASONS FOR DECISION

19  April 2004 Miss Mary Imlach (Senior Member)         

1.      This is an application by Mr Stanley Young for a review of a decision by Centrelink made on 13 September 2001 to cancel the applicant’s disability support pension.   That decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 25 February 2003.

Issues

2.      The issues are:

(i)Was the applicant severely disabled at the time he left Australia?

(ii)Was the applicant prevented from returning to Australia during the period of his initial portability by a reason prescribed in s1218(C)(1) of the Social Security Act 1991 (“the Act”).

Background

3.      The applicant was granted a disability support pension (DSP) on 2 December 1999 for the conditions of diabetes mellitus, anxiety state and right basal thumb arthritis.

4.      He left Australia on 31 May 2000 and resides in Greece.

5.      The applicant’s DSP was cancelled on 5 June 2001 at the end of the 12 month portability period that applied under the law that was in force at the time Mr Young left Australia.

6.      Mr Young requested an extension of the portability period on 29 October 2001 and supplied a medical report from Dr Tsokos dated 22 October 2001 stating that the applicant suffered from diabetes type 2 with neuropathy and angiopathy as well as lower limb thrombosis.

7.      The original decision to cancel the applicant’s DSP was affirmed by an authorised review officer of Centrelink on 28 December 2001.

8.      The SSAT confirmed the decision of Centrelink on 4 December 2002.   The applicant supplied the SSAT with a medical certificate from Dr Loukas dated 15 September 2002 stating that the applicant had severe heart arrhythmia and sudden deep vein thrombosis.

9.      The applicant applied to this Tribunal on 1 April 2003 for a review of the decision by Centrelink.

Reasons

10.     The matter was heard in part in Hobart on 3 December 2003 by telephone link to the applicant and his wife in Greece.

11.     The Tribunal adjourned the matter on 3 December 2003 until a later date and granted the applicant further time to produce medical evidence that deep vein thrombosis and severe heart arrhythmia existed between 31 May 2000 to 1 June 2001.   The applicant told the Tribunal that he was obtaining such evidence in Athens later that day (3 December 2003).

12.     The applicant filed a medical certificate dated 3 December 2003 from Dr Nicholas Tendolouris with the Tribunal on 19 December 2003.

13.     On 9 March 2004 the respondent filed a report from Health Services Australia Limited dated 2 March 2004 in relation to Mr Young.

14.     

The Tribunal noted all the evidence contained in the file and the additional

evidence supplied by Mr Young and the respondent.

15. The relevant legislation for Mr Young’s Initial portability period is in s1213A(1) of the Act, that was in force at the time Mr Young left Australia. The legislation says that DSP payment can be continued for 12 months if a person is not severely disabled. The legislation sets out in s23(4B) what is meant by severely disabled. The Tribunal was not satisfied that Mr Young was totally unable to work when he left Australia nor was he blind, therefore, he was not severely disabled within the meaning of the Act.

16.     The Tribunal then considered the application of s1213A(2) to Mr Young’s case.   This section reads:

“If

(a)a person is receiving a disability support pension granted on or after 12 November 1991; and

(b)the person leaves Australia on or after that day; and

(c)the Secretary decides that the person is not severely disabled when leaving; and

(d)the person continues to be absent from Australia for a period of 12 months

the person ceases to be qualified for disability support pension on the day after the 12 month period ends.”

17.     The Tribunal noted that the applicant was in receipt of DSP when he left Australia in May 2000, he was not severely disabled when he left Australia and he has been absent for more than 12 months.   The Tribunal concurred therefore that the applicant ceased to be qualified for DSP on 1 June 2001.

18. The Tribunal then considered whether s1218C(1) of the Act applied to Mr Young. That section provides that the Secretary may extend a person’s portability period if the Secretary is satisfied that the person is unable to return to Australia, because of certain events which are listed. Section 1218C(1)(b) stipulates one of those events to be “a serious illness of the person or a family member of the person”.

19.     Section 1218C(2) provides that 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.

20.     The Tribunal found that the evidence produced by Mr Young in the certificates provided by his doctors suggested deep vein thrombosis existed.   There was nothing in those certificates until the certificate of Dr Tsokos, dated 22 October 2001 to show that deep vein thrombosis was present and even then, there was no advice what treatment was given or whether the condition was severe.   The report of Dr Luke Loukas of 15 September 2002 which diagnosed the sudden deep vein thrombosis and heart arrhythmia simply recommended not flying for a period of six months.

21.     The Tribunal found that the certificate dated 3 December 2003 from Dr  Nicholas Tendolouris which stated:

“In addition, it was confirmed that thrombosis of the veins has been found in his lower extremities (legs).”

Did not clarify when the condition of thrombosis and arrhythmia had commenced or how long the conditions had existed.    The certificate added nothing further to the evidence already before the Tribunal.

22.     The Tribunal concluded that as it appeared on the evidence provided that Mr Young developed deep vein thrombosis in October 2001, and heart arrhythmia in September 2002, these problems arose after the initial portability period had expired and therefore cannot be used to extend the portability period.

Decision

23.      THAT the decision made by Centrelink on 13 September 2001 not to extend the applicant’s disability support pension period thus cancelling his disability support pension is affirmed.

I certify that the 23  preceding paragraphs are a true copy of the reasons for the decision herein of  Miss Mary Imlach
(Senior Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  3 December 2003 (By telephone link to Greece)
Date of Decision   19 April 2004
Counsel for the Applicant         Applicant appeared on own behalf
Solicitor for the Applicant           
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink