Post by Banjo on Feb 2, 2016 13:21:42 GMT 7
Trajcevski and Secretary, Department of Social Services (Social services second review) [2016] AATA 15 (20 January 2016)
THE DECISION OF 10 SEPTEMBER 2013
On 5 January 2012, the Department of Human Services (the Department) advised Mr Trajcevski that it was conducting a review to determine whether he was still terminally ill.
Mr Trajcevski forwarded further medical material to the Department between May 2012 and March 2013. The medical information was forwarded to the Health Professional Advisory Unit (HPAU) for an assessment. Dr Tabart from the HPAU wrote a report dated 26 July 2012, noting further medical evidence may be required as the reports presented so far were inconclusive. Further medical evidence was provided and, in a further report dated 24 June 2013, Dr Tabart concluded that there was no conclusive evidence to support a finding that Mr Trajcevski was terminally ill.
THE ISSUE BEFORE THE TRIBUNAL
It is not disputed that Mr Trajcevski is resident in Macedonia. Therefore pursuant to subsection 94(1) subparagraph (eA)(ii) of the SS Act he must meet all of the requirements specified in subsection 1218AA(1) of the SS Act. The Secretary concedes that Mr Trajcevski meets the requirements of all of the paragraphs of subsection 1218AA(1) other than paragraph (c) because Mr Trajcevski is not terminally ill.
Therefore, the issue which I am required to decide, as I stand in the shoes of the Secretary, is whether the cancellation decision of 10 September 2013 was correct because Mr Trajcevski was not terminally ill.
THE MEANING OF "TERMINALLY ILL"
The phrase "terminally ill" which appears in subsection 1218AA(1) paragraph (c) is not defined in the SS Act.
In the 24 March 2005 decision of the SSAT which held that Mr Trajcevski was terminally ill, a broad meaning was given to this phrase. The SSAT stated as follows:
[36] The tribunal notes that in the carer allowance application the phrase a terminal phase of a terminal illness is used, but in 1218AA. 1(c) about portability of a disability support pension the phrase terminally ill is used and no time sequence is mentioned. The tribunal finds that the phrase "terminally ill" is a more difficult phrase to define. Persons with mesothelioma, some cancers with secondaries, liver disease, kidney disease, congestive cardiac failure and conditions such as motor neurone disease, multiple sclerosis and muscular dystrophy have terminal illnesses. Frequently there is no treatment available to lessen their increasing failure and approaching death but seldom would their treating specialist predict the likely length of time of their survival, until they are well nigh unto death. The tribunal has no doubt on the medical evidence presented that Mr Trajcevski will not recover from his poor respiratory function but no one can predict for how long he will continue to live in this 'current state of half living' where he requires assistance even to go about his activities of daily living and has no prospect of any improvement in his state of health or activity. The drier, cooler and cleaner air of Bitola may make Mr Trajcevski more comfortable in attempting to breathe but it will not do anything to improve his lung pathology. The tribunal accepts using the South Australian Consolidated Acts Interpretation of "terminal illness" and "terminal phase" that Mr Trajcevski has reached the terminal phase of his terminal illness where there is no real prospect of recovery or remission of symptoms, on either a permanent or temporary basis. The tribunal accepts that no one can state how long it will be before pneumonia, bronchitis or respiratory failure is likely to terminate Mr Trajcevski's life, but finds the phrase terminally ill a vague term for which the tribunal cannot find any adequate definition in textbooks, dictionaries or from medical colleagues who are dealing with dying patients, such as oncologists.
DECISION
The decision of the former Social Security Appeals Tribunal is set aside and remitted with a direction that on 10 September 2013 Mr Vangel Trajcevski was terminally ill within the meaning of subsection 1218AA(1) paragraph (c) of the Social Security Act 1991 (Cth).
www.austlii.edu.au/au/cases/cth/AATA/2016/15.html
THE DECISION OF 10 SEPTEMBER 2013
On 5 January 2012, the Department of Human Services (the Department) advised Mr Trajcevski that it was conducting a review to determine whether he was still terminally ill.
Mr Trajcevski forwarded further medical material to the Department between May 2012 and March 2013. The medical information was forwarded to the Health Professional Advisory Unit (HPAU) for an assessment. Dr Tabart from the HPAU wrote a report dated 26 July 2012, noting further medical evidence may be required as the reports presented so far were inconclusive. Further medical evidence was provided and, in a further report dated 24 June 2013, Dr Tabart concluded that there was no conclusive evidence to support a finding that Mr Trajcevski was terminally ill.
THE ISSUE BEFORE THE TRIBUNAL
It is not disputed that Mr Trajcevski is resident in Macedonia. Therefore pursuant to subsection 94(1) subparagraph (eA)(ii) of the SS Act he must meet all of the requirements specified in subsection 1218AA(1) of the SS Act. The Secretary concedes that Mr Trajcevski meets the requirements of all of the paragraphs of subsection 1218AA(1) other than paragraph (c) because Mr Trajcevski is not terminally ill.
Therefore, the issue which I am required to decide, as I stand in the shoes of the Secretary, is whether the cancellation decision of 10 September 2013 was correct because Mr Trajcevski was not terminally ill.
THE MEANING OF "TERMINALLY ILL"
The phrase "terminally ill" which appears in subsection 1218AA(1) paragraph (c) is not defined in the SS Act.
In the 24 March 2005 decision of the SSAT which held that Mr Trajcevski was terminally ill, a broad meaning was given to this phrase. The SSAT stated as follows:
[36] The tribunal notes that in the carer allowance application the phrase a terminal phase of a terminal illness is used, but in 1218AA. 1(c) about portability of a disability support pension the phrase terminally ill is used and no time sequence is mentioned. The tribunal finds that the phrase "terminally ill" is a more difficult phrase to define. Persons with mesothelioma, some cancers with secondaries, liver disease, kidney disease, congestive cardiac failure and conditions such as motor neurone disease, multiple sclerosis and muscular dystrophy have terminal illnesses. Frequently there is no treatment available to lessen their increasing failure and approaching death but seldom would their treating specialist predict the likely length of time of their survival, until they are well nigh unto death. The tribunal has no doubt on the medical evidence presented that Mr Trajcevski will not recover from his poor respiratory function but no one can predict for how long he will continue to live in this 'current state of half living' where he requires assistance even to go about his activities of daily living and has no prospect of any improvement in his state of health or activity. The drier, cooler and cleaner air of Bitola may make Mr Trajcevski more comfortable in attempting to breathe but it will not do anything to improve his lung pathology. The tribunal accepts using the South Australian Consolidated Acts Interpretation of "terminal illness" and "terminal phase" that Mr Trajcevski has reached the terminal phase of his terminal illness where there is no real prospect of recovery or remission of symptoms, on either a permanent or temporary basis. The tribunal accepts that no one can state how long it will be before pneumonia, bronchitis or respiratory failure is likely to terminate Mr Trajcevski's life, but finds the phrase terminally ill a vague term for which the tribunal cannot find any adequate definition in textbooks, dictionaries or from medical colleagues who are dealing with dying patients, such as oncologists.
DECISION
The decision of the former Social Security Appeals Tribunal is set aside and remitted with a direction that on 10 September 2013 Mr Vangel Trajcevski was terminally ill within the meaning of subsection 1218AA(1) paragraph (c) of the Social Security Act 1991 (Cth).
www.austlii.edu.au/au/cases/cth/AATA/2016/15.html
