ZVJQ and Secretary, Department of Social Services (Social services second review)
[2022] AATA 3435
•19 October 2022
ZVJQ and Secretary, Department of Social Services (Social services second review) [2022] AATA 3435 (19 October 2022)
Division:GENERAL DIVISION
File Number(s): 2020/8043
Re:ZVJQ
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Ms A E Burke AO, Member
Date:19 October 2022
Place:Melbourne
The Tribunal varies the decision under review and decides that ZVJQ’s back spasm was sufficiently serious to prevent her from returning to Australia for a period of six weeks from 26 November 2019 until 8 January 2020.
The decision under review is otherwise affirmed.
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Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – disability support pension – suspension – maximum portability period – extension of portability period – whether Applicant’s injury or serious illness prevented her from returning to Australia – impact on ability to travel because of COVID – decision under review varied in part but otherwise affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 and Other Measures) Act 2003 (Cth)
Social Security Act 1991 (Cth)
Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 (Cth)Cases
Divanis and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 633
Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194
Jamal and Secretary, Department of Social Services (Social services second review) [2016] AATA 43Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (No 3) [2011] FCA 268
Secondary Materials
Guide to Social Security Law, Department of Social Services
Knezevic, Prof Nebojsa Nick et al, ‘Low back pain’ (2021) 398(10294) The Lancet 78
Parr, Adam and Geoffrey Askin, ‘Non-radicular low back pain: Assessment and evidence based treatment’ (2020) 49(11) Australian Journal of General Practice 724REASONS FOR DECISION
Ms A E Burke AO, Member
19 October 2022
INTRODUCTION
ZVJQ (the Applicant) is seeking a second tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) on 23 June 2020 to suspend her Disability Support Pension (DSP) as it was not payable for the period 3 December 2019 to 21 June 2020 because she was outside of Australia, had exceeded her portability period and did not meet the requirements for an extension of the portability period pursuant to section 1218C of the Social Security Act 1991 (Cth) (the Act).
On 3 December 2019 Centrelink suspended ZVJQ’s DSP, as she had exceeded her portability period. On 3 March 2020, Centrelink cancelled ZVJQ’s DSP as she was still overseas. On 23 June 2020, a Centrelink Authorised Review Officer (ARO) affirmed the decision to suspend ZVJQ’s DSP on 3 December 2019 but varied the decision by deciding to suspend, rather than cancel, her DSP until her return to Australia on 22 June 2020. ZVJQ sought review of the ARO’s decision at the Social Services and Child Support Division of this Tribunal (AAT1), which affirmed the decision on 4 November 2020. Centrelink is the service provider for Services Australia.
This application was heard via video hearing on 29 July 2022. ZVJQ was self- represented. Ms Rebekha Pattison, Partner at King & Wood Mallesons, appeared for the Respondent. ZVJQ and her brother-in-law gave evidence under affirmation from the United Kingdom (UK).
THE ISSUEs IN CONTENTION
The issue in contention is whether discretion should be exercised under section 1218C of the Act to extend the portability period for the payment of ZVJQ’s DSP for the period of 3 December 2019 when her portability period expired until 22 June 2020 when she returned to Australia.
Background
ZVJQ has been in receipt of the DSP since 2018. ZVJQ’s movement records indicate that she departed Australia on 5 November 2019 and returned on 22 June 2020. ZVJQ’s Centrelink customer records show the following:
(a)On 5 November 2019 she advised Centrelink she was intending to travel to the UK and would be returning to Australia on 5 January 2020;
(b)On 2 December 2019 she contacted Centrelink to enquire about portability for her DSP;
(c)On 4 January 2020 ZVJQ advised Centrelink that she was unable to return to Australia due to a medical condition. Centrelink records state that evidence needed to be assessed for a portability extension;
(d)On 24 January 2020 she again contacted Centrelink about portability for her DSP. Centrelink records state that she was informed at the time of the portability interview on 5 November 2019 that payments were going to be stopped on 3 December 2019:
Evidence provided: Medical certificate states the following facts: - Dated 29/11/2019.- Condition: "Arthritis- mobility issues cannot travel".- "Not fit for work" for "3 months" for the period of "26/11/19 to 25/02/2020". Decision: The above evidence does not demonstrate what prevented this CUS from returning to AU before 03/12/19. It does not demonstrate the unforeseen event that happened whilst she was in the UK. Arthritis is a condition that is preexisting and she travelled to the UK suffering from the condition. Why is this CUS not able to fly for three months?
On 3 December 2019, Centrelink suspended ZVJQ’s DSP as she had exceeded her portability period. On 3 March 2020, Centrelink cancelled ZVJQ’s DSP as she was still overseas.
On 23 June 2020 a departmental ARO affirmed the decision to suspend ZVJQ’s DSP on 3 December 2019 but changed the decision to cancel her DSP from 3 March 2020, and instead determined to restore ZVJQ’s DSP from 22 June 2020 (the date she returned to Australia), reasoning:
You have asked for an extension to the portability period because you could not return to Australia within the portability period due to your disabilities and medical conditions and have provided medical evidence to support your request.
The Act allows for an extension to the payment period outside Australia within the same 12 month period due to a serious unforeseen event of an emergency nature that has prevented them from returning to Australia before the end of the portability period. The event must have occurred during the portability period and includes events such as being involved in a serious accident, becoming seriously ill and being hospitalised with a serious illness.
The medical evidence states you were suffering from arthritis, mobility issues an acute back spasm and could not travel.
While there is no question that you were struggling due to your disabilities and medical conditions your while you were outside Australia, I have found that the evidence does not confirm that you were prevented from returning to Australia before the end of the portability period (3 December 2019) due to a serious accident or becoming seriously ill or being hospitalised with a serious illness. Therefore, I cannot extend the portability period and the decision to suspend your payments on 3 December 2019 was correct.
The agency is instructed to cancel a payment after 13 weeks of non-payment due to a temporary overseas absence.
However, I am satisfied that you were prevented from returning to Australia before your payments were cancelled on 3 March 2020 due to the current global Coronavirus (COVID- 19) pandemic.
Therefore, I have decided that your Disability Support Pension can remain suspended until your return to Australia on 22 June 2020 and your payments can be restored from this date.
On 4 November 2020, AAT1 affirmed the ARO’s decision to suspend ZVJQ’s DSP on 3 December 2019. The Tribunal found:
A common feature of such events appears to be that they are serious and unforeseen events of an emergency nature.
The Tribunal accepts that ZVJQ was unable to return to Australia by 2 December 2019 due to her acute back spasm but is not satisfied that this condition could not have been anticipated prior to her departure from Australia given her prior history of underlying lumbar spinal disc bulges and degenerative changes. Moreover, there is no evidence before the Tribunal to warrant the conclusion that ZVJQ’s episode of back spasm amounted to a medical emergency of the kind contemplated in the limited discretion afforded under section 1218C of the Act.
The Tribunal therefore finds that ZVJQ’s DSP payments were correctly suspended on 3 December 2019.
The Tribunal finds that the decision to cancel ZVJQ’s DSP on 3 March 2020, while technically correct, was properly varied by the ARO to a decision to suspend payments, owing to the impact of COVID-19 on travel to Australia.
On 10 December 2022, ZVJQ sought a review of the AAT1 decision by this division of the Tribunal (AAT2), as she disagreed with the decision. She stated:
Member disregarded medical evidence of doctor.
Member asked me leading questions, especially when he said the ARO can use their discretion to extend suspension portability period, rather than DSP cancellation. Mr Grossman said something like, I ask you or I put to you ZVJQ, “was that not a noble act”? That shows bias. I do not believe and an ARO’s job involves noble or ignoble discretion. Nor do I think “nobility” is part of Centrelink’s code of conduct.
Member did not address/respond to my arguments in his decision
Member ignored fact I was in the UK in 2019 for a month and was okay.
Member, in my view, was “putting” things to me and raising arguments for Centrelink and none on my behalf. I am of view member was representing Centrelink instead of looking at medical evidence
My view is Member Grossman subjected me to discrimination by stating that anyone who is disabled or has pre-existing conditions – it is foreseeable that a back spasm is “foreseeable”. This is nonsense. Many disabled people or people with back problems are “asymptomatic” non-disabled people have spasms or people without my back issues can suffer a spasm any time. Mr Grossman I feel made a medical diagnosis and projection forecast without examining me. Not sure if he has medical qualifications.
Legislation
Section 1215 of the Act relevantly states:
(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, Item 2
Section 1217 of the Act relevantly states:
1217 Meaning of maximum portability period, allowable absence and portability period
Meaning of maximum portability period
(1) The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:
(a) the payment (as specified in column 2 of the table); and
(b) the class of persons to which the person belongs (as specified in column 3 of the table).
Meaning of allowable absence
(2) The person’s absence is an allowable absence in relation to the payment at a particular time if, at that time:
(a) it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and (b) except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B applies, the absence does not:
(i) exceed the period specified in column 5 of that item; or
(ii) in the case of item 2—cause the total number of days (whether consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28, ignoring days in accordance with that item.
Meaning of portability period if unlimited maximum portability period
(3) If the person’s maximum portability period for the payment is an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.
Meaning of portability period if maximum portability period limited
(4) If the person’s maximum portability period for the payment is not an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is the period:
(a) beginning at the commencement of the period of absence; and
(b) ending at the earlier of the following times:
(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;
(ii) the end of the period that is the person’s maximum portability period for the payment.
Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstances
Portability of social security payments Column 1 Column 2 Column 3 Column 4 Column 5 Item Payment Person Absence Maximum portability period 1 Age pension All persons Any absence Unlimited period 2 Disability support pension Australian resident disability support pensioner Any temporary absence, except for any of the following purposes:
(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose
A total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving disability support pension (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D) 2AA Disability support pension Australian resident disability support pensioner Temporary absence for any of the following purposes:
(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose
4 weeks (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D)
Section 1217 Item 2AA of the Act states that the maximum portability period for DSP recipients for any temporary absence from Australia is four weeks, if it is to seek eligible medical treatment, attend an acute family crisis, or for a humanitarian purpose.
Section 1218C of the Act provides a discretion to extend a person’s portability period in certain circumstances:
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:
(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;
(d) the death of a family member of the person;
(e) the person’s involvement in custody proceedings in the country in which the person is located;
(f) a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g) robbery or serious crime committed against the person or a family member of the person;
(h) a natural disaster in the country in which the person is located;
(i) political or social unrest in the country in which the person is located;
(j) industrial action in the country in which the person is located;
(k) a war in the country in which the person is located.
(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
(b) if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
(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.
Evidence
ZVJQ
On 5 February 2021, ZVJQ provided the following as additional reasons for seeking review of the AAT1 determination:
I would like to argue that the Tribunal member disregarded new medical evidence and also did not mention any new Centrelink policy changes and proceeded to apply the old law in my case.
The portability decision
Section 1218C of the Social Security Act says that Centrelink may extend a person’s portability period if they are satisfied that the person is unable to return to Australia because of any one of a number of specified events. The list of events includes the following types of events, which are relevant in my case:
(b) a serious illness of the person or a family member of the person;
(h) a natural disaster in the country in which the person is located;
(i) political or social unrest in the country in which the person is located;
Timing of the event
Section 1218C also says that a person’s portability period can only be extended if the event occurred or began ‘during the period of absence.’ There is caselaw and Centrelink policy which says that the ‘period of absence’ refers to the initial portability period, i.e. in my case the 28 days between 5 November 2019 and 3 December 2019.
The letter from Dr Salene Kumar (page 35) says that she saw me on 26 November 2019 with acute back spasm, therefore I do have evidence that the event (being my illness) began during My portability period. Given I am not a citizen, I got whatever medical treatment and supporting documentation that I could.
Mr Grossman did not understand the NHS and it is nothing like the Australian system. Doctors have to see so many patients per hour and the NHS is underfunded and it is reactionary rather than proactive. For example, I also got a baker's cyst in London in November and could not get any treatment for it. I managed to get an ultrasound in May 2020, that is how long you wait. It is a public health system that services over 70 million people. I should not be held to the standards of the Australian health system as I was not in Australia. The system is overloaded, which is why many UK doctors come to Australia.
When I returned to Australia within a few days I had minor surgical procedure and cortisone injections and was okay. I also got the meds and physio I needed in Australia. Some meds in the UK are classed as restricted substances and the NHS will not prescribe them. It is a different public health system.
I tried to explain to Mr Grossman that the NHS gives standard not fit for work forms. Letters take longer and you have to pay £25 and even that is limited to what you can get. I got what I could from the NHS. Mr Grossman erred in expecting the kind of medical evidence I can get in Australia, such as the letter from Dr Koutsis and then the letter from Dr Johnson.
The nature of my illness was one that ‘began’ while I was overseas, and not an exacerbation of an existing condition. Mr Grossman totally disregarded the letter from Dr Koutsis.
The supporting letter I have now obtained from my new doctor, Dr Amanda Johnson, I believe and argue, does a good job of explaining that my back spasm was not an exacerbation of a preexisting spasm,
I also need to explain to the Tribunal and clarify, that the letter I sent to Centrelink in November or December 2019, referring to my medical conditions over the last year was intended to be a reference to conditions I had (Centrelink knows my med conditions anyhow) in addition to my new condition of back spasm, supported by the documentation of Dr Selena Kumar of the NHS.
In fact, those conditions have not prevented me from working in the past, nor prevented me from travelling overseas in the past, and in fact I travelled to the UK the previous year in 2018 for a month. Centrelink has that evidence on file. Centrelink and Mr Grossman, have both misinterpreted my communications and has chosen to wrongly hold up that letter on its own and then to disregarded supporting and further medical evidence, and totally disregard the fact that I had been to the UK in 2018 for a month, and I had also visited family in Hong Kong in 2015/2016 Christmas period for a month.
I had also gone to Greece in 2006 for a month or so, as my father was diagnosed with a terminal illness. I also went to Greece a second time in 2007 for two weeks when my father passed away.
The Tribunal member, Harry Grossman has dismissed letter of Dr Koutsis who states that my back spasm in UK was a new event, and my previous travel history with no back spasm issues.
Dr Koutsis relied on the UK MRI scan results which I had in London to make a medical diagnosis.
Mr Grossman relied on his own opinion to make a diagnosis and a future prediction.
I am not sure if Centrelink has the MRI results from the UK, if not I will send to Tribunal and Centrelink.
In fact Mr Grossman goes further and takes on the role of medical practitioner, in both diagnosing and foreseeing what would happen to me in the future. I haven’t had a back spasm since returning overseas and if one were to accept Mr Grossman’s and Centrelink’s reasoning, then one would have to necessarily argue that it would be foreseeable, given my medical conditions, that I would indeed and in fact MUST suffer another back spasm. I have not and my condition has been stable. I would say that this is due to the fact that I am in beautiful Sydney and have had beautiful weather and not 0 and minus degrees temperature that England experiences.
Mr Grossman also dismissed my statement that I also went on a previous family visit to the UK in 2018 and returned in a month. I did not have a back spasm. In 2019 the intention was to return again.
I believe I phoned Centrelink twice on 5 November 2019 and the second time I advised them I was intending to return in a month (as a family advised they were going overseas in December for work).
The impact of COVID-19
Centrelink policy about the operation of section 1218C provides the following:
A discretionary extension must be for a definite period, during which time the recipient's situation is expected to change and enable return to Australia. Should a person be unable to return to Australia on expiry of the new allowable portability period, the case should be assessed and a further definite period may be allowed if appropriate.
…
It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia. It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia at the first available opportunity
My expectation was that I would return to Australia as soon as my illness allowed. I was not having a holiday, as I was not mobile.
In my case, of course, the treacherous and unforeseen global pandemic COVID-19 intervened and meant it wasn’t possible for me to return until June 2020.
I also note that Mr Grossman raised all sorts of arguments for Centrelink and many counter arguments against me, and Mr Grossman failed to mention one thing that I was able to use in my favour, that the Authorised Review Officer (page 18) indicated that Centrelink introduced a policy which approved changes to portability extension processing for people who were overseas and affected by COVID-19.
Also, may I add, that a Centrelink officer called Jackie from International Services at Centrelink also advised that there were no policy changes due to Covid. This information is incorrect and deplorable for a Centrelink officer to be giving people misleading and deceptive information, when those people are stranded overseas with no payment due to a global pandemic. It was on the news; some Australians were homeless and sleeping in Cemetaries. Others were taken in by kind English people and others by charities. Some fellow Australians are still stuck in the Uk and other countries. Some went over for work and when Covid hit, they lost their jobs and because they had not been working for over 12 months, they could not access furlough payments and are relying on friends and relatives for financial support. There were both welfare recipient and working people who suffered during the pandemic in March 2020 and beyond.
It was horrible and depressing to be in the UK. Over 1000 people died a day over a consecutive 22 days. The NHS was at breaking point. All the NHS did was Covid, and now it is worse. so, I was fortunate to get the medical evidence I could.
Good on Captain Tom Moore for walking in his front yard and raising over £30 million pounds. I am of the honest belief that Mr Harry Grossman had no idea of the NHS nor what was going on in London in late January and early February 2020, things were crazy way before the lockdown began in March 2019. The MHS medical centres, including the Wellington clinic closed down in February 2020, as all efforts were about Covid, and quite rightly so.
Mr Grossman's statements, were incorrectly aligned to old Centrelink pre-Covid 19 policy and he failed to take into account Covid 19 Centrelink policy changes. In fact, Mr Grossman asked me if I did not think that Centrelink’s decision was a “noble act”. I did not respond that I agreed with Mr Grossman.
Therefore in expressly verbally stating to me that the actions of Centrelink were "noble", that implies that my appeal is "ignoble".
However, Mr Grossman did not mention the above policy changes and totally disregarded the new medical evidence from Dr Koutsis and made a medical diagnosis and prediction that a back spasm was foreseeable as it was a pre-existing condition.
If Mr Grosman is not aware of any new policy, then he is not competent to be making administrative law decisions.
I do not know if Mr Grossman has any medical qualifications.
At the hearing, ZVJQ gave evidence that:
(a)she could not comprehend why all her medical evidence from Australia and overseas had been rejected;
(b)she argued that she was prevented from travelling by a very painful medical regression, relying on the case of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis(No 3) (2011) 121 ALD 41;
(c)her sister took her to see a doctor in the UK because she was in such pain and could not move unaided. She stated that the Tribunal needed to understand that the National Health System (NHS) is completely different to the Australian medical system as doctors cannot prescribe medication which meant she had to wait to get much needed pain medication from a prescribing pharmacy. She said that the UK health system is broken and everything takes a long time, even before the COVID-19 pandemic;
(d)she had enquired with her treating doctor about the duration of her back spasm and he referred her to some Google Scholar documents which opined that back pain was categorised into three types: acute is pain present for less than six weeks, sub-acute is 6-12 weeks, and chronic is longer than 12 weeks. Her doctor informed her that 60% of patients with acute lower back pain are able to return to work in one month, and 90% within three months, and that most people improve with minimal intervention;
(e)Centrelink had suggested extending her portability period by two weeks, but she could not understand why Centrelink suggested this time frame because based on the medical evidence, she was not fit to fly for a minimum of 6 weeks, which took her unfitness to travel into late January 2020;
(f)she believed Centrelink was being overzealous. As the ARO noted in their determination, Centrelink had changed its policy due to COVID-19 in recognition of people’s inability to travel such that any person who was overseas and in receipt of social security benefits on 31 January 2020 could be paid to June 2020. She believed that because of this policy, Centrelink did not want to extend her portability period by more than two weeks. She feels that this unreasonable and not acceptable, because a doctor who examined her at the time stated that she could not travel for three months;
(g)she had been advised by Centrelink that the medical certificate from Dr Kumar provided insufficient information for a determination to grant her extended portability, so she then paid a significant additional fee to get a second letter from Dr Kumar to provide additional evidence to support her claim that she was unable to travel;
(h)she could not understand why the MRI records which she provided to Centrelink were insufficient to demonstrate that she could not travel, arguing that evidence could go no higher than an MRI;
(i)she had never experienced back pain like that before. She spent the time at her sister’s home, in her room or on the couch; she was in tears and her sister and brother-in-law had to look after her;
(j)when she left Australia on 5 November 2019, she had intended to stay overseas for a month to see family, but she had not booked a return ticket to Australia as she previously always shopped around to get the best priced tickets. She did not feel completely up to a long-haul flight back to Australia until March 2020.
ZVJQ’s brother-in-law, gave the following evidence:
(a)he did not know if ZVJQ was suffering back pain or spasms as he is not a doctor, and there was sufficient evidence of her back condition on the MRI to rely on;
(b)ZVJQ was wholly incapacitated for a couple of weeks by her back pain;
(c)During the time that he was in the UK he was working from home so he was able to look after ZVJQ. She was not an easy patient to deal with; he just sat and listened to her complain, would get her tea and food, and on a few occasions, she could not move so he had to physically hold her to go to the loo;
(d)he could also confirm that the problems ZVJQ had identified with the NHS are endemic and is unfortunately something that they have to deal with in the UK;
Medical Evidence
On 4 November 2019, Dr James Koutsis, general practitioner in Sydney, stated in a medical certificate that ZVJQ was ‘fit to fly and due to past medical conditions would benefit from an increased leg room seat if available’.
On 29 November 2019, Dr Salene Kumar, general practitioner in London, provided ZVJQ with a ‘Statement of Fitness for Work for social security or Statutory Sick Pay’ in which she assessed ZVJQ was unfit for work because of ‘Arthritis - mobility issues cannot travel at present’. Dr Kumar stated that this would be the case for three months from 26 November 2019 until 25 February 2020.
On 18 February 2020 Dr Kumar provided the following medical letter for ZVJQ:
ZVJQ is a registered patient with my practice.
I saw her on 26 November 2019 with acute back spasm. As a result she was unable to travel.
On 27 May 2020, ZVJQ had an MRI investigation on her spine at Healthshare London. The report concluded that there was ‘multilevel level degenerative changes in lumbar spine’ and recommended clinical correlation.
On 28 September 2020 Dr Koutsis provided the following medical report for ZVJQ:
I am writing to clarify ZVJQ’S medical history. I have been her General Practitioner in Sydney for the past 9 and half years and have seen her on a regular basis.
I have reviewed medical documents from the UK in relation to an episode of acute back spasm she sustained while she was there. As a result of this she was unable to fly home to Australia at that time.
I would like to clarify that this episode is not a pre-existing condition. ZVJQ does have underlying lumbar spinal disc bulges and degenerative changes but these chronic conditions do not affect her ability to travel.
On 2 November 2020 Dr Koutsis, provided the following medical report for ZVJQ:
I have examined ZVJQ today as she has noticed new swelling in her lumbar spinal region. On examination, this is consistent with right lumbar paraspinal muscle thickening and spasm, which is tender in this region. She reports a history of acute back spasm while in the UK which started mid November 2019. Her examination findings today are possibly resultant from that injury.
On 19 November 2020 Dr Amanda Johnson, general practitioner in Sydney, provided the following medical report for ZVJQ:
ZVJQ presented today regarding her disability support pension and the decision by the chief executive.
ZVJQ has been a patient of the practice since 2011 under Dr James Koutsis. I have seen zvjq intermittently over this period when Dr Koutsis was unavailable. Dr Koutsis is retiring from general practice so ZVJQ will now be seeing myself.
ZVJQ developed back spasm late November whilst visiting family in the UK. Due to this back spasm/pain she was unable to travel. Her travel back to Australia was further delayed due to covert travel restrictions.
Chief executive has stated that they were not satisfied that this condition could not have been anticipated prior to her departure from Australia given her prior history of underlying lumbar spinal disc bulges and degenerative changes.
ZVJQ had a CT in 2016 to investigate acute back pain,
Report stated
“No high-grade compressive neural lesion is seen in the lumbar spine. There is a broad-based disc bulge posteriorly at L3-4, L4-5 and L5-S1. There is no forminal stenosis and no high-grade central canal stenosis. There is some lateral recess narrowing at each level and only minor facet arthropathy. No upper lumbar pathology seen.”
The pain was acutely referred pain from a uterine region and not secondary to any of the mild changes demonstrated. The finding broad-based disc bulges at lease levels are mild and did not cause any symptoms at the time period they have not cause back spasm in the past.
Repeat MRI 27/05/2020 with back spasm does not demonstrate any change in disc bulge, all reported as mild. It does demonstrate moderate facet arthrosis at L4/5 which was not present previously.
“There are multilevel degenerative changes in the lumbar spine
at L1/2 there is mild to moderate facet arthrosis
at L2/3 there is mild facet arthrosis
at L3/4 there is mild disc bulge and minimal facet arthrosis. There is mild to moderate narrowing of the lateral recesses on both side and there is minimal to mild can no stenosis. There is bilateral neutral foraminal stenosis.
At L4/5 there is a moderate facet arthrosis and mild thickening of the ligamentum flavum. There is mild disc bulge. There is mild to moderate narrowing of the left lateral recess and there is mild narrowing of the right lateral recess.
There is mild canal stenosis. There is minimal right neutral foraminal stenosis.
At L5/S1 there is moderate facet arthrosis. There is mild disc bulge. There is mild narrowing the lateral recesses on both sides. There is minimal left sided neural foraminal stenosis and mild right-sided neutral foraminal stenosis.
There are no other findings of note.
Conclusion:
multilevel degenerative changes in the lumbar spine.”
Thus the back spasm is not a pre-existing condition and therefore the statement that this could have been foreseen to occur with travel is an erroneous one.
ContentionS
ZVJQ
ZVJQ fundamentally contended that she had experienced a debilitating back spasm around 26 November 2019 which prevented her from returning to Australia by the end of her DSP portability period on 2 December 2019. She stated that she had been bedridden and unable to travel until the end of January 2020, however around that time she and thousands of others experienced travel restrictions due to COVID-19 which prevented her from returning to Australia.
ZVJQ argued that she has always abided by the requirements of Centrelink, had at all times reported as required and she had accepted on previous occasions that her DSP would be suspended if she remained outside of Australia beyond the portability period.
ZVJQ vehemently argued that the back spasm which she experienced was new and not a pre-existing condition which she could have foreseen.
ZVJQ contended that she was entitled to payment of her DSP for the period 3 December 2019 to 22 June 2020 as she had experienced circumstances which had prevented her from returning to Australia. ZVJQ argued the Tribunal should exercise discretion to extend her portability period as her serious illness had prevented her from returning to Australia. Her situation was compounded by COVID-19. In her written evidence she stated:
The new Centrelink policy provides that overseas payments could be extended to 30 June 2020, for people who were ‘overseas and current’, i.e. on a payment as at 31 January 2020.
However, the severity of my back spasm meant that I couldn’t return from the UK to Australia until at least 31 January 2020 (and my portability period should extended until that date), and therefore I argue that the policy should apply to me.
ZVJQ contended that her medical injury was confirmed by Dr Kumar in the UK, as well as by a specialist radiologist via an MRI, and validated by more than one doctor in Australia. She stated that this medical evidence had been constantly challenged by public servants from Centrelink who have no medical qualifications.
ZVJQ was concerned that no one at Centrelink had contacted any of the general practitioners or specialists who provided letters about her medical condition, and who would be able to confirm her condition and its prognosis.
ZVJQ argued that an initial injury, such as she experienced, can become chronic. However, Centrelink representatives were adamant that this was not so, were zealous to dictate their opinions, make diagnoses and prognoses from an ignorant and non-medically qualified position.
ZVJQ was also adamant that Centrelink had not taken into account the impact of COVID-19 nor the policy change which she contented was applicable to her situation.
ZVJQ referred to the Federal Court case of Mouratidis and contended that this was the correct way to apply s 1218C, which is not as rigid nor inflexible as previous AAT cases. ZVJQ argued that the Respondent’s representative had only directed the Tribunal to non-binding AAT decisions which established that a higher threshold was required for the discretion in s 1218C to be exercised. ZVJQ argued that the only case the Tribunal should afford any weight to is Mouratidis because it is a Federal Court decision, and it should be given precedence. She argued that if the Federal Court’s interpretation of s 1218C in Mouratidis was followed, the Respondent would fail as in that case.
ZVJQ also argued that the AAT cases referred to by the Respondent are not relevant as the injuries described in these cases were not the same as her condition. For example, ZVJQ argued that the shoulder injury suffered by the Applicant in Jamal and Secretary, Department of Social Services [2016] AATA 43 was different to the injury she suffered. ZVJQ argued shoulder injuries can be treated with cortisone injections, pain medication and people suffering from shoulder injuries can still sit upright. By contrast, she argued that spinal canal stenosis causes horrific nerve pain and, as the spine continues to narrow, can lead to paralysis. Therefore, ZVJQ contended the cases cited by the Respondent’s representative to argue that a higher threshold was required for discretion to be exercised to extend portability, were not relevant as they did not speak to her circumstances and medical conditions.
ZVJQ contended, based on her understanding of Mouratidis, that s 1218C is a remedial provision designed to remedy the affairs of someone stuck overseas because of a worsening of their medical condition making them worse. However, ZVJQ contended that Centrelink was using section 1218C as a punitive and inflexible provision, which she argues is contrary to the Federal Court’s findings.
ZVJQ referred to the interpretation of s 1218C in Mouratidis at [67] in which Justice Dodds-Streeton states, 'Section 1218C is a remedial provision and should be liberally construed. …'. This construction is further articulated at [97]:
Section 1218C is a remedial provision conferring a discretion to extend a portability period "where a person finds him or herself in any of the grievous circumstances listed in that section". It should be construed to avoid a capricious or unjust operation. In my opinion, on a proper construction, the reach of s 1218C is sufficient to address developments in a known, pre-existing illness which only became serious or sufficiently serious to prevent the benefit-holder's return to Australia during his or her absence…
ZVJQ argued that in Mouratidis the appeal required consideration of the following principal question: whether an appreciable deterioration in an existing illness can constitute the occurrence of a serious illness which is an 'event' within the meaning of s 1218C(1)(b) of the Act, or whether, on the contrary, the term ‘event’ in the relevant legislation requires a sudden and material change and a specific identifying incident rather than a condition or illness which came on gradually. ZVJQ took the Tribunal to the following from the decision at [22]-[24] in which the Court refers to the cases of Morched and Secretary, Department of Family and Community Services [2009] AATA 584 and Manolev and Secretary, Department of Family and Community Services (2005) 88 ALD 794:
He rejected the Manolev interpretation that when "the event" required by s 1218C was a serious illness, it must be a specific identifying incident and not something which came on gradually.
The Deputy President stated at [25]: This Tribunal is unable to accept that limitation which does not appear in the words of the section and there is no reason to read down the words used. As is apparent from the terms of the section, the event must have "occurred" or "began" during the period of absence. For an illness to occur, this includes a condition manifesting itself. Among the meanings attributable to the verb "to - 13 - occur" are "take place, befall, happen", and it in this sense that the noun "event" in s 1218C(2) of the Act should be understood.
The Deputy President observed that although frail and aged, the respondent's mother was fit to undertake the journey to Greece in May 2008, but by 2 December 2008 (while the respondent was still in Greece) her condition appreciably deteriorated and "[a]s at 2 December 2008…her condition had changed from one in which she was merely old and frail with Alzheimer's disease to one in which she had become seriously ill as the result of that disease" (at [27]).
ZVJQ argued that like the Applicant in Mouratidis, she was fit to undertake the journey to the UK, indeed she had gotten medical clearance as she always does, and also like the Applicant in Mouratidis, she became seriously ill as a result of her injury which took time to manifest and caused her issues well into January 2022. As a result of these unforeseen circumstances, she argued that Centrelink was punishing her for not being able to get a flight back to Australia, dismissing the fact that she was distressed and terrified, and her mental health was deteriorating as she was in a COVID-19 hotspot. ZVJQ took the Tribunal to the following from Mouratidis at [37]-[43], referring to the Tribunal’s decisions in Manolev and Morched:
The Tribunal’s decision in Manolev depended, in my view, on its failure to find a serious illness in either the applicant or a family member, which began or occurred during his absence from Australia.
The member's observations that the serious illness must be unexpected, have a limited timeframe, have only a short effect, must not come on gradually and must constitute a specific identifying incident were obiter dicta and, in my view, were unwarranted restrictions.
In the subsequent decision of Morched, the Tribunal Member, Dr D Campbell, adopted a different construction of s 1218C of the Act. Member Campbell set aside a decision under review refusing the applicant an extension of the portability period. In Morched, the applicant, who was in receipt of a disability support pension, had a number of existing medical conditions prior to travelling from Australia to Lebanon. There was a considerable body of evidence as to his medical condition during his approximately six months’ stay in Lebanon. Although the applicant had placed no reliance on it in seeking an extension, there was also evidence of the illness and death of his sister during his absence from Australia.
Member Campbell concluded that the evidence did not establish that the applicant’s ill health occurring in August was a serious illness. He considered that rather, any illness suffered during the relevant period was a continuance of symptomatology arising from the applicant’s many pre-existing chronic conditions. Member Campbell observed that “there is no evidence to suggest that there has been a particular deterioration in his chronic conditions, as evidence by what he was prescribed, the absence of any hospitalisation or the need for supplementary care…” (at [19]).
In relation to the applicant's sister's illness and death, however, Member Campbell was satisfied that (at [25]): the set of circumstances outlined in respect of his sister's illness and death would constitute events which culminated during his period of absence and, from the point of view of a reasonable person, would have been significant in his inability to return to Australia.
On that basis, Member Campbell concluded that the applicant satisfied the requirements of s 1218C of the Act and granted an extension of the portability period.
ZVJQ submitted that the correct interpretation of s 1218C of the Act is as stated in Mouratidis:
It is a precondition of the exercise of the discretion under s 1218C that one (or more) of a number of specified "events" be the cause of the person's inability to return to Australia and that it begins or occurs during the person's period of absence. Each of the terms in s 1218C must be construed in context of the provision, and indeed, the legislation, as a whole, in order to accord the section a rational operation consonant with the statutory objectives. The term "event" is a label subsuming the different circumstances specified in sub-paras (a) to (k) and to which its common dictionary meanings may not be commonly applied.
ZVJQ submitted that in her case the event relied on was the occurrence of a serious illness of a back spasm.
Therefore, ZVJQ argued, based on the decision in Mouratidis, discretion should be exercised to extend her DSP portability period as:
(a)Whilst in the UK, something triggered a regression with her medical condition in the form of a back spasm that prevented her from further travel because it left her with very limited mobility and pain for many weeks.
(b)Her UK medical evidence has been confirmed by Australian medical practitioners. One medical practitioner stated that back spasms can take more than 8 weeks to heal.
(c)Centrelink, however, rejected any and all medical evidence she has supplied, always stating it was not sufficient and at the same time refusing to tell her exactly what medical evidence was required.
Respondent
The Respondent contended that ZVJQ’s maximum portability period for the DSP was 28 days in a 12-month period. Accordingly, the Respondent contended that, as ZVJQ departed Australia on 5 November 2019, her portability period commenced on 5 November 2019 and ended on 2 December 2019, pursuant to subsection 1217(4)(b)(ii) of the Act.
The Respondent contended that, as ZVJQ’s portability period had ended, the DSP was not payable to her under paragraph 1215(1)(b) of the Act commencing from 3 December 2019.
The Respondent contended section 1217 Item 2AA did not apply to ZVJQ as there was no evidence that her absence from Australia was to seek eligible medical treatment, attend an acute family crisis, or for a humanitarian purpose
The Respondent accepted that ZVJQ suffered a back spasm during her portability period and that this was not a pre-existing condition.
However, the Respondent contended that there was insufficient evidence to satisfy the Tribunal that the ZVJQ’s back spasm was a ‘serious illness’, and that ZVJQ was unable to return to Australia on or before 2 December 2019. The Respondent relied upon the following evidence:
(a)The initial medical certificate provided by Dr Kumar dated 29 November 2019 did not mention the back spasm at all. Instead, it referred to ZVJQ’s arthritis, which was a pre-existing condition.
(b)There was no explanation or detail in Dr Kumar’s medical certificate or subsequent letter about the seriousness, duration or functional impact of ZVJQ ‘s condition.
(c)A three-month period of no travel is a significant period of time. Dr Kumar does not explain or provide any detail about why such a lengthy period was considered necessary.
(d)There is no evidence about what alternatives were considered to enable ZVJQ to return to Australia within the portability period – for example, the use of analgesics, other medication, a stopover on the return flight (as she did on her journey to the UK), stretches she could undertake during the flight and suitable seating arrangements on the flight (as were recommended on her flight to the UK) – and why it was considered that none of these were appropriate.
The Respondent contended that the test the Tribunal needed to focus on was whether ZVJQ was unable to return to Australia because of a serious illness which occurred after ZVJQ left Australia. The Respondent argued that if this test was met, then the Secretary (or in this case the Tribunal standing in the Secretary’s shoes) has discretion to extend ZVJQ’s portability period.
The Respondent understood from the materials that the serious illness ZVJQ contended prevented her from returning to Australia was the back spasm she experienced in November 2019. The Respondent accepted this was not a condition ZVJQ had when she left Australia. The Respondent argued that proceeding on the basis of just looking at the back spasm, the question for the Tribunal becomes whether this prevented ZVJQ from returning to Australia as it was a serious illness.
The Respondent took the Tribunal to several cases which it argued were analogous to ZVJQ’s situation and acknowledged that whilst these determinations were not binding, they did provide useful guidance. The Respondent also directed the Tribunal to the Social Security Guide (the Guide) which clearly articulates: ‘It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia’. The Respondent also argued the Guide should be followed unless there was a cogent reason to depart from its application.
The Respondent argued that for the discretion in s 1218C be enlivened, it was necessary for ZVJQ’s illness to be so serious it prevented her from returning. The Respondent acknowledged that serious illness had not been defined in the legislation or case law, however previous determinations had considered that even if an induvial experienced pain and discomfort, that did not necessarily amount to a serious illness.
The Respondent took the Tribunal to the matter of Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194, submitting it was relevant as the Applicant in that matter had also received medical advice not to travel and had been issued with a medical certificate but ultimately the Tribunal found that there wasn't insufficient evidence of serious medical illness. The Respondent that argued just because ZVJQ had a medical certificate, that this was not definitive or determinative that she was suffering from a serious illness which prevented her from travel. The Respondent cited Senior Member R W Dunne’s determination in Djebarra at [10]-[12]:
The expression “serious illness” is not defined in the Act. In Re Manolev and Secretary, Department of Family and Community Services [2005] AATA 398; 88 ALD 794, Dr P Staer, Member, made the following observation (at paragraphs 29-31):
“The Macquarie Dictionary gives some of the following definitions of "serious": ‘of grave aspect’, ‘giving cause for apprehension’, ‘critical’. In the Explanatory Memorandum of changes to the Social Security Act it states under the new Section 1218C - Extension of a person’s portability period: "This Section provides a discretion for the Secretary to extend a person’s portability period where the person finds him or her self in any of the grievous circumstances listed in the Section".
The Tribunal would, from the above, come to the conclusion that 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.
The Tribunal finds that Mr Manolev’s illnesses are rather vague without specific onset and without a specific end point.”
Then, in Re Rosehart and Secretary, Department of Employment and Workplace Relations [2006] AATA 417, Associate Professor B W Davis AM, Member, made the following further observation (at paragraph 30):
“Application of discretionary powers under s1218C are severely limited anyway. The explanatory memorandum to the legislation states it applies only to a person undergoing grievous circumstances; the Guide to Social Security Law says it applies only to an extreme or emergency situation; and in earlier AAT decisions such as Manolev and Secretary, Department of Family and Community Services (2005 AATA 398 it was ruled section 1218C should only be applied in cases of serious illness or emergency circumstances:
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.”
The Respondent argued that to exercise the discretion to extend ZVJQ’s portability, the Tribunal, standing in the shoes of the Secretary, was required to go behind the medical certificates to determine that a serious illness or specific unexpected event which had a limited timeframe, prevented ZVJQ from being able to return to Australia. The Respondent submitted that ZVJQ’s circumstances as described, did not meet the threshold of being grievous circumstances. The Respondent acknowledged the additional evidence provided at the hearing had shed more light on ZVJQ’s serious illness and was useful, however they argued it still didn’t meet the higher threshold envisaged in the legislation and previous Tribunal determinations.
The Respondent next referred the Tribunal to the determination of Jamal and Secretary, Department of Social Services [2016] AATA 43, noting in this case the Applicant who dislocated his shoulder overseas was provided with a medical report which recorded he required two months in bed with physiotherapy. The Tribunal in this case again found that whilst the medical certificate indicated he was unable to return for two months, this was insufficient to meet the threshold of being grievous circumstances. The Respondent cited Prof R McCallum AO, Member in Jamal at [62]:
Second, having regard to the injury to Mr Jamal's shoulder, I further find that I am not satisfied that the dislocation of Mr Jamal's shoulder prevented him from returning to Australia on or about 11 December 2014, and it certainly did not prevent Mr Jamal flying back to Australia before 29 January 2015. I accept that he did require ongoing treatment and that he would have suffered some pain on the return flight. However, I do not accept that he would not have been able to fly back to Australia on or about 11 December 2014.
The Respondent contended that in Jamal the Tribunal was satisfied that had the Applicant travelled back to Australia, he would have been able to receive necessary treatment, and this had not prevented him from returning or flying, though accepting that the Applicant would have suffered some pain whilst travelling. The Respondent argued that while this appears to be a high benchmark, it clearly demonstrates previous Tribunal approaches. They argued that even if treatment is needed by the Applicant and pain is experienced, that is not sufficient to meet the threshold for serious illness triggering the discretion to extend portability.
The Respondent finally referred to the case of Divanis and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 633.. The Respondent accepted that ZVJQ suffered a back spasm during her portability period and that this was not a pre-existing condition. The Respondent’s contention was that there was still insufficient evidence to support that ZVJQ had suffered a serious illness to the extent that she was unable to travel back to Australia. The Respondent contended that ZVJQ’s evidence was that the only treatment she had obtained and undertaken was non-prescription medication. Whilst acknowledging ZVJQ had mobility problems, there was simply no corroborating medical evidence to show she was unable to return to Australia.
The Respondent referred to the finding in Divanis at [23] that ‘it was unsupported by medical evidence as to the degree to which the episode may have been debilitating, such that it might be described as a “serious illness”’. It said that he suffered “... a serious clinical disease requiring very frequent medical care with frequent biological and radiological analyses ...”. The Tribunal found this description to be of little assistance in determining whether the applicant’s illness was serious in nature. The second certificate from Dr Bourbia dated 5 March 2006 was similarly of little assistance. It described medical conditions from which the applicant suffered prior to leaving Australia. The applicant acknowledged that, notwithstanding three or four visits to Dr Salhi while he was in Algeria, his family had been unable to obtain a more detailed and accurate description of his illness. Like the SSAT, the Tribunal accepts that the applicant may have experienced ill health while he was in Algeria, but the Tribunal is not satisfied, on the evidence before it, what the illness was or that it was so serious that he was unable to return to Australia by 5 March 2006.
The Respondent submitted that based on the Guide and numerous other cases before the Tribunal, the test requires an event which is extreme or an emergency. The Respondent argued that a back spasm doesn't meet this higher threshold. The Respondent argued there was limited evidence about seriousness, duration and functional impact of ZVJQ’s condition described by Dr Kumar as a back spasm. The Respondent submitted there was simply insufficient evidence that discretion should be enlivened to extend the portability period.
CONSIDERATION
There was no dispute between the parties that the Tribunal standing in the Secretary’s shoes has discretion to extend ZVJQ’s portability period if it can determine she was unable to return to Australia because of a serious illness which occurred after left Australia. There was no dispute between the parties that this was the sole focus of this application.
In her written submissions, ZVJQ has correctly asserted the issue before the Tribunal is her fitness to travel and anything outside of this was irrelevant to her appeal.
The Tribunal reiterates that this is a de novo hearing (from Latin, meaning “from the new”) where the Tribunal is deciding the issues without reference to any conclusions or assumptions made by previous decision makers. ZVJQ’s written and oral testimony raised numerous other issues covered at other phases of her appeal process which the Tribunal will not address as they had no bearing on the matter before the Tribunal or in any way informed the Tribunal’s determination. The Tribunal would encourage ZVJQ to continue to press her concerns about these matters in other forums, as is her right, to ensure she has vented all her concerns about how she has been dealt with during this stressful period of her life.
The Tribunal determines, based on the MRI evidence, that it was beyond doubt that ZVJQ has a chronic degenerative lumbar spine disease. As opined by both her general practitioners in Sydney, episodic “back spasms” can be a common accompaniment of such a condition, and this can cause severe pain and limit mobility.
Based on all the evidence before it, the Tribunal accepts, and was conceded by the Respondent, that ZVJQ suffered a back spasm, being the event, during her portability period. The Tribunal accepts, and was conceded by the Respondent, that this was not a pre-existing condition or foreseeable event.
The Tribunal concurs with Judge Dodds-Streeton’s finding in Mouratidis that there was no requirement that ZVJQ’s illness ‘be or involve an emergency, that it develop suddenly rather than gradually, or that it be of short duration’.
The Tribunal’s decision in Manolev depended, in my view, on its failure to find a serious illness in either the applicant or a family member, which began or occurred during his absence from Australia.
The member’s observations that the serious illness must be unexpected, have a limited timeframe, have only a short effect, must not come on gradually and must constitute a specific identifying incident were obiter dicta and, in my view, were unwarranted restrictions.
Therefore, the Tribunal determines that ZVJQ fulfilled the requirement of section 1218C(2)(a) of the Act as the event occurred or began during the period of absence.
The question before the Tribunal is then limited to a determination of whether this event was so serious it prevented ZVJQ from returning to Australia. To determine the correct or preferable decision as to whether to exercise its discretion to grant an extension of ZVJQ’s portability period, the Tribunal utilised the Guide at instruction 7.1.2.10 which states:
A discretionary extension must be for a definite period, during which time the recipient's situation is expected to change and enable return to Australia. Should a person be unable to return to Australia on expiry of the new allowable portability period, the case should be assessed and a further definite period may be allowed if appropriate.
…
It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia. It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia at the first available opportunity (e.g. where an extension is allowed due to illness, the recipient is required to return immediately when their health allows this) - extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia. … 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 portability period
Additionally, the Tribunal was assisted by the reference in Judge Dodds-Streeton decision in Mouratidis at [16] which quoted the Explanatory Memorandum from when the current ss 1213, 1215, 1217 and 1218C were inserted into the Act by the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 (Cth):
This Part amends the “international portability” provisions of the Social Security Act 1991 – that is, those provisions which deal with the rules for payment of social security payments when the customer leaves Australia temporarily.
…
New section 1218C - Extension of person's portability period
This section provides a discretion for the Secretary to extend a person's portability period, where the person finds him or herself in any of the grievous circumstances listed in that section
The decision at [17] also quoted the Explanatory Memorandum of when s 1217 was amended and s 1218AA was inserted into the Act by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 and Other Measures) Act 2003 (Cth):
Schedule 6 – Reducing portability period
Schedule 6 amends the Social Security Act to reduce the allowable period of temporary overseas absence for portable social security payments from 26 weeks to 13 weeks.
…
These amendments are intended to encourage people who are workforce age and on income support payments to remain in Australia and be available to contribute through employment or social participation.
To arrive at this determination the Tribunal, in accordance with section 33 of the AAT Act, informed itself of the medical literature on back spasms by reviewing a 2020 article by Adam Parr and Geoffrey Askin, ‘Non-radicular low back pain: Assessment and evidence-based treatment’ in the Australian Journal of General Practice (AJGP) published by the Royal Australian College of General Practitioners, a 2021 article, ‘Low back pain’ in The Lancet and numerous systematic reviews investigated by the Cochrane Review.
The literature does not refer to back spasm as a diagnosis, the general refence throughout the literature is to back pain. The common thread in respect of back spasm was that it was a short-lived episodic event that is often indicative of an underlying condition.
The 2020 clinical article by Parr and Askin in the AJGP states that its aim is ‘to help clinicians assess patients with LBP and formulate evidence-based treatment decisions’. The article relevantly states:
Discussion
Patient presentations can be stratified according to the presence of red flags and pain type (ie non-spinal, radicular, non‑organic and central). The vast majority of patients with acute central back pain experience improvement of their symptoms. Treatment options include education, lifestyle modification, heat, massage, graduated return to early activity, nonsteroidal anti-inflammatory medications and muscle relaxants when appropriate. Chronic LBP treatment can also include paracetamol and physiotherapy. Second-line treatment can include psychological therapy, multidisciplinary rehabilitation, targeted injections and antidepressants. Tapentadol is a safe and effective medication for treating severe LBP. Pain specialist referral should be considered if patients require controlled analgesia. Surgical treatment has narrow indications in central non-radicular back pain and is considered as a last-line treatment in selected patients.
Low back pain (LBP) is a common condition affecting up to 84% of adults at one stage during their lives, accounting for a significant burden of disease. LBP can be classified as acute, subacute and chronic (>6 weeks). While 90% of patients recover from an acute period of LBP, recurrences are common. It is estimated that 32% of patients with back pain will not return to work at one month, and this cohort is at risk for long-term work absence. History and examination generally allow the clinician to stratify patients into those with red flags and by the nature of pain (non-spinal, radicular, non-organic or central LBP). Further investigation and management can then be guided by the relevant category of pain. Patients will often present with features of multiple categories, and priority is given to ruling out sinister causes first.
…
Treatment
There are many treatment options available to the clinician. No treatment has been shown to be superior; as a result, multimodal therapy is the cornerstone of treatment. The individualisation of treatment is based on best evidence, physician experience and patient preference.
Non-pharmacological
Patient education regarding aetiology, prognosis and treatment options is paramount for treating LBP. Prognosis is favourable with long-term treatment programs focusing on symptomatic relief. Educational material may be individually useful but has not been shown to improve outcomes. Cold packs can be used in the acute inflammation phase, while hot packs can be used in the chronic muscle spasm phase. Massage can improve pain, depression and sleep in the medium term.
It is recommended that activity modification be done in phases. A period of light activity and avoidance of painful activities is appropriate for several days. However, bed rest is not recommended. An early return to low-stress aerobic activity and work improves pain tolerance, mood and strength in chronic LBP. Physiotherapy-directed strengthening and posture control can start after the acute period and continue indefinitely. Core exercises are more effective than general exercise for decreasing pain and increasing function. It is important to emphasise long-term weight reduction, with a loss of ≥5% body weight reducing the prevalence of LBP. Given the low-risk profile of the above treatments, they can be beneficial for all patients.
The Tribunal had to determine if ZVJQ’s back spasm was a grievous circumstance which could reasonably be expected to prevent her from returning to Australia. As Judge Dodds-Streeton concluded in Mouratidis at [96]-[97]:
Read in context, the inability to return to Australia referred to in s 1218C(1) is to be measured by reference to what is feasible or could be reasonably expected in the specified circumstances.
Section 1218C is a remedial provision conferring a discretion to extend a portability period “where a person finds him or herself in any of the grievous circumstances listed in that section”. It should be construed to avoid a capricious or unjust operation. In my opinion, on a proper construction, the reach of s 1218C is sufficient to address developments in a known, pre-existing illness which only became serious or sufficiently serious to prevent the benefit-holder’s return to Australia during his or her absence, and the diagnosis, detection or manifestation during the period of absence of a hitherto undetected serious pre-existing illness.
The Tribunal must also consider the specific circumstance in which ZVJQ’s event, her back spasm, took place. In that regard there was no controversy that ZVJQ left Australia on 5 November 2019 prior to the World Health Organisation (WHO) reporting the outbreak of COVID-19 on 31 December 2019. The WHO declared COVID-19 a Public Health Emergency of International Concern on 30 January 2020, and a universal precautionary self-isolation requirement on all international arrivals to Australia was announced on 15 March 2020.
ZVJQ lodged numerous news article to demonstrate the impact of COID-19, in particular the enormous impact it had on people’s ability to return to Australia from overseas. There was no dispute that COVID-19 had a significant impact on social security recipients. The Department of Social Services (DSS) introduced temporary measures for extension of social security recipients overseas on limited portability payments:
Customers on certain payments can have their payments overseas extended until 30 June 2020, without the need for evidence, if they get an affected payment and they either:
x were overseas and current on 31 January 2020
x left Australia between 1 February 2020 and 18 March 2020 and were payable on departure
Customers do not meet the above criteria if they departed on or after 19 March 2020, after the Prime Minister announced travel restrictions.
They must apply for and be assessed under normal discretionary extension policy and processing procedures.
ZVJQ argued that, in this context, her specific circumstances mean that a determination of her application should be on the basis that she could not travel for a period of eight weeks, from the end of her portability period on 2 December 2019 until 31 January 2020. ZVJQ contended the DSS temporary measures should have applied, and her DSP should not have been suspended. The Respondent did not address this contention as they submitted there was simply insufficient evidence that discretion should be enlivened to extend the portability period.
The Tribunal does not concur with ZVJQ’s contention that she would have been entitled to an extension of her payment as of 31 January 2020 as she was overseas. The DSS policy had numerous caveats and did not simply apply to all DSP recipients who were overseas as of 31 January 2020. The Tribunal notes on 31 January 2020 ZVJQ’s DSP payment was not current.
The Tribunal therefore did not limit its consideration to whether ZVJQ’s event prevented her from travelling for an eight-week period, but rather on the basis of the discretion as outlined in the Guide and the decision of Mouratidis: was her back spasm so serious, or sufficiently serious, that it prevented her return to Australia?
The Tribunal was not assisted by the medical evidence provided by ZVJQ’s general practitioners in Australia or London. Dr Kumar made no mention of back spasm, yet certified ZVJQ was unfit to travel or work for three months. This certificate provided no detail about the seriousness of ZVJQ’s condition, the symptoms she was experiencing, the functional impact of the condition, or recommended treatment. The further clarification from Dr Kumar indicated that ZVJQ had seen her with an acute back spasm but again offered no insight on the seriousness of the condition or explanation for a three month period of inability to travel.
The Tribunal does not dispute ZVJQ’s contentions that the NHS in the UK operates in a very different fashion to the health system in Australia. The Tribunal nevertheless can only rely upon the evidence before it and does not find the medical certificate and letter from Dr Kumar supports that ZVJQ’s condition met the threshold of being grievous circumstances.
Secondly, given Drs Koutsis and Johnson examined ZVJQ nine to twelve months after the event occurred, the Tribunal cannot rely on this medical evidence to determine if her acute back spasm was a ’serious illness’ which prevented her from returning to Australia on or before 2 December 2019. Whilst both Drs Koutsis and Johnson report ZVJQ was unable to travel, this was based on the certificate from Dr Kumar not their own observation. Neither Drs Koutsis or Johnson offered any opinion about the seriousness of the back spasm or the impact on her ability to travel, which was completely reasonable as neither had seen her at the time. Indeed, Dr Koutsis evidence clearly indicates that ZVJQ’s chronic conditions do not affect her ability to travel.
ZVJQ does have underlying lumbar spinal disc bulges into genitive changes that these chronic conditions do not affect her ability to travel. This is further supported by the fact that before she travelled to the UK she was medically cleared by her GP in Melbourne (where she was living at the time) to fly and she has medical certification for this.
The Tribunal was perplexed that no one, including ZVJQ, considered any alternatives which would have enabled her to travel home prior to June 2020. ZVJQ provided no evidence that she had sought to book flights before she experienced the back spasm on 26 November 2019, six days before the end of her portability period, or in the weeks following the event. The Tribunal does not dispute that ZVJQ would have suffered some pain on the return flight. However, there was no consideration that ZVJQ may have been able to utilise analgesics, a stopover, stretches during the flight or over wing seating to give her extra leg room. All options ZVJQ utilised in her travel to the UK to deal with her existing chronic conditions.
ZVJQ’s evidence was that:
Centrelink is punishing me for not being able to get a flight back to Australia, and totally dismissing the fact that I was distressed and terrified, with my mental health deteriorating as I was in a Covid hotspot.
The Tribunal does not dispute that COVID-19 was a factor in ZVJQ’s inability to eventually return to Australia, but that was not a factor in December 2019, a time when flights back to Australia were readily available. The Tribunal notes that a reluctance to travel does not equate to an inability to travel, and there is no clear evidence that supports a finding that ZVJQ was incapable of travel for an extended period of time.
The Tribunal, relying upon the AJGP evidence-based article referenced above, considers that ZVJQ’s acute back spasm would have caused her considerable pain and for a time would have significantly impaired her ability to travel. However, the Tribunal notes the AJGP advice clearly indicates the best treatment option is to keep moving:
It is recommended that activity modification be done in phases. A period of light activity and avoidance of painful activities is appropriate for several days. However, bed rest is not recommended. An early return to low-stress aerobic activity and work improves pain tolerance, mood and strength in chronic LBP.
Conclusion
Having carefully considered all the evidence, the Tribunal finds that ZVJQ’s back spasm would have restricted her ability to travel for a period of time but once the acute phase had passed, she should have been able to utilise options to return to Australia.
The Tribunal finds the evidence does not support that ZVJQ’s ‘event’ was a grievous circumstance. The Tribunal considers that if ZVJQ’s acute back pain was so debilitating for a period of eight weeks as she contended, there would have been an indication, namely seeking some form of pain relief, such as taking any form of medication, even simple analgesics, being admitted to hospital, or returning to the doctor. There was insufficient evidence before the Tribunal to support that ZVJQ’s back spasm met the threshold for a serious illness to trigger the discretion to extend portability for a period of three months as indicated in Dr Kumar’s medical certificate of 29 November 2019.
The Tribunal determines that the evidence indicates that ZVJQ’s back spasm occurred around 26 November 2019. The Tribunal finds that ZVJQ’s back spasm would have prevented her from being able to travel for a period and decides to exercise its discretion to extend her portability for a period in line with the evidence from the Royal Australian College of General Practitioners. The Tribunal determines that ZVJQ’s DSP portability period should be extended for the period 3 December 2019 to 8 January 2020.
DECISION
The Tribunal varies the decision under review and decides that ZVJQ’s back spasm was sufficiently serious to prevent her from returning to Australia for a period of six weeks from the 26 November 2019 until 8 January 2020.
The decision under review is otherwise affirmed.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
...........[sgd]............................
Associate
Dated: 19 October 2022
Date of hearing: 29 July 2022 Date of final submissions: 19 September 2022
Applicant: Self-Represented Respondent representative: Ms Rebekha Pattison Respondent solicitors: King & Wood Mallesons
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