Post by Banjo on Jan 21, 2016 8:15:18 GMT 7
Belal and Secretary, Department of Social Services (Social services second review) [2015] AATA 1006 (22 December 2015)
BACKGROUND
On 8 April 2009 Ms Belal commenced receiving disability support pension (DSP) because of a permanent mental health condition that had caused impairment.
On 13 September 2013, Ms Belal left Australia to visit relatives and friends in Iran. Her original plan was to return to Australia by 24 October 2013 but she did not return until 9 December 2013.
On 17 October 2013 Ms Belal suffered an acute condition of the left eye and attended a medical centre.
In a medical certificate Dr Taghizadeh, Emergency Medicine specialist, states that Ms Belal attended on 17 October 2013 with clinical symptoms including ‘paralysis of the 3rd cranial nerve (left side) and hypotension’. He recommended that Ms Belal avoid travel ‘until such times that the necessary diagnostic tests are completed’ so she cancelled her return airline ticket to Australia.
On 25 October 2013, Centrelink wrote to Ms Belal to inform her that her DSP had been suspended because she was still overseas.
On 12 December 2013, Centrelink informed Ms Belal that her DSP would recommence on 9 December 2013.
Centrelink was subsequently contacted with a request for an extension of the six week portability period.
The request for the extension of the portability period was rejected by Centrelink, both initially and on internal review, on the basis that that the evidence provided by Ms Belal did not demonstrate that she was unable to return to Australia before 24 October 2013, the end of her portability period, because she was suffering a serious illness.
The former Social Security Appeals Tribunal (SSAT) in its decision of 26 February 2015 was uncertain as to whether Ms Belal’s eye condition could be regarded as a ‘serious illness’ but affirmed the decision not to extend the portability because the phrase ‘unable to return’ was a high threshold which “requires evidence that confirms that a person’s illness prevents them from travelling, not simply that they preferred not to travel until they recovered”.
In these proceedings Ms Belal seeks review of the decision of the SSAT.
WAS MS BELAL ‘UNABLE TO RETURN TO AUSTRALIA’?
Ms Belal told the Tribunal that Dr Taghizadeh had given her a list of the investigations he had recommended.
In a statement dated 5 October 2015, Ms Belal provided several reasons for not being able to arrange the recommended investigations including, financial difficulty, no Medicare equivalent, no travel insurance, long waiting periods and inability to afford private treatment. She did, however, manage to see other doctors from “time to time”.
In a supplementary statement dated 10 November 2015, Ms Belal stated, inter alia, the following:
I had the green light to leave Iran back to Australia, because of the following:
(a) I felt better. I was not 100% but I felt some improvement in my health and I told the same to the doctors prior to my departure.
(b) My serious illness did not develop to a more serious condition since the time I was examined by Dr. Taghizadeh until the time I left Iran back to Australia. This gave me the confidence to contemplate flying back to Australia - the doctors also were of same opinion at that time.
The phrase ‘unable to return’ is not defined in the Act.
Section 7.1.2.10 of the Guide to Social Security (the Guide) provides, inter alia, as follows:
General Rules of Portability
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...
DECISION
The decision under review is set aside and substituted with a decision that pursuant to section 1218C of the Act Ms Belal’s portability period for DSP should be extended for the period 24 October 2013 to 9 December 2013.
www.austlii.edu.au/au/cases/cth/AATA/2015/1006.html
BACKGROUND
On 8 April 2009 Ms Belal commenced receiving disability support pension (DSP) because of a permanent mental health condition that had caused impairment.
On 13 September 2013, Ms Belal left Australia to visit relatives and friends in Iran. Her original plan was to return to Australia by 24 October 2013 but she did not return until 9 December 2013.
On 17 October 2013 Ms Belal suffered an acute condition of the left eye and attended a medical centre.
In a medical certificate Dr Taghizadeh, Emergency Medicine specialist, states that Ms Belal attended on 17 October 2013 with clinical symptoms including ‘paralysis of the 3rd cranial nerve (left side) and hypotension’. He recommended that Ms Belal avoid travel ‘until such times that the necessary diagnostic tests are completed’ so she cancelled her return airline ticket to Australia.
On 25 October 2013, Centrelink wrote to Ms Belal to inform her that her DSP had been suspended because she was still overseas.
On 12 December 2013, Centrelink informed Ms Belal that her DSP would recommence on 9 December 2013.
Centrelink was subsequently contacted with a request for an extension of the six week portability period.
The request for the extension of the portability period was rejected by Centrelink, both initially and on internal review, on the basis that that the evidence provided by Ms Belal did not demonstrate that she was unable to return to Australia before 24 October 2013, the end of her portability period, because she was suffering a serious illness.
The former Social Security Appeals Tribunal (SSAT) in its decision of 26 February 2015 was uncertain as to whether Ms Belal’s eye condition could be regarded as a ‘serious illness’ but affirmed the decision not to extend the portability because the phrase ‘unable to return’ was a high threshold which “requires evidence that confirms that a person’s illness prevents them from travelling, not simply that they preferred not to travel until they recovered”.
In these proceedings Ms Belal seeks review of the decision of the SSAT.
WAS MS BELAL ‘UNABLE TO RETURN TO AUSTRALIA’?
Ms Belal told the Tribunal that Dr Taghizadeh had given her a list of the investigations he had recommended.
In a statement dated 5 October 2015, Ms Belal provided several reasons for not being able to arrange the recommended investigations including, financial difficulty, no Medicare equivalent, no travel insurance, long waiting periods and inability to afford private treatment. She did, however, manage to see other doctors from “time to time”.
In a supplementary statement dated 10 November 2015, Ms Belal stated, inter alia, the following:
I had the green light to leave Iran back to Australia, because of the following:
(a) I felt better. I was not 100% but I felt some improvement in my health and I told the same to the doctors prior to my departure.
(b) My serious illness did not develop to a more serious condition since the time I was examined by Dr. Taghizadeh until the time I left Iran back to Australia. This gave me the confidence to contemplate flying back to Australia - the doctors also were of same opinion at that time.
The phrase ‘unable to return’ is not defined in the Act.
Section 7.1.2.10 of the Guide to Social Security (the Guide) provides, inter alia, as follows:
General Rules of Portability
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...
DECISION
The decision under review is set aside and substituted with a decision that pursuant to section 1218C of the Act Ms Belal’s portability period for DSP should be extended for the period 24 October 2013 to 9 December 2013.
www.austlii.edu.au/au/cases/cth/AATA/2015/1006.html
