Editors --- "Newstart allowance: whether payable overseas; eligible medical treatment" [2010] SocSecRpr 44; (2010) 12(3) Social Security Reporter, Article 10

• OSMANI and SECRETARY TO THE DEEWR
• Background
• Issues
• Discussion
• Formal decision

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Newstart allowance: whether payable overseas; eligible medical treatment

OSMANI and SECRETARY TO THE DEEWR

(2010/605)

Decided: 16th August 2010 by E. Fice

Background

Osmani was receiving newstart allowance when he departed Australia on 2 July 2009 to access long term drug and alcohol residential rehabilitation in Croatia. He was admitted to the Cenacolo Community Centre on 8 September 2009, and returned to Australian in March 2010.

Centrelink ceased paying newstart allowance to Osmani whilst he was outside Australia, as they were satisfied that he did not meet the provisions in the Social Security Act 1991 (the Act) regarding portability of newstart allowance. In particular, a delegate determined that Osmani’s absence from Australia was not for the purpose of seeking ‘eligible medical treatment’.

Osmani sought internal review and review by the SSAT, who affirmed the delegate’s decision. He then appealed to the AAT.

Issues

The only issue for determination by the AAT was whether Osmani’s temporary absence from Australia was for the purpose of seeking ‘eligible medical treatment’.

Discussion

Newstart allowance is payable whilst a person is outside Australia, for a maximum period of 13 weeks, only if the absence is for the purpose of seeking ‘eligible medical treatment’, to attend an acute family crisis or for a humanitarian purpose.

The term ‘eligible medical treatment’ is defined in s.1212 of the Act to mean ‘...medical treatment of a kind that is not available to the person in Australia’. The term ‘medical treatment’ is not defined in the Act, and the AAT considered that the term should be given a broad meaning, such that it would include any treatment that would promote the healing of a medical illness, whether that be physical or psychological, and would include therapeutic treatment obtained at the direction of a qualified medical practitioner.

The AAT was critical of the attempt in the Social Security Guide to narrow the meaning of the expression ‘medical treatment’, and concluded that the Secretary was attempting to use the guidelines to interpret the statute, which was impermissible.

The AAT found that the treatment received by Osmani at the Cenacolo Community Centre in Croatia was ‘medical treatment’, as it included therapeutic treatment and was undertaken at the direction of a legally qualified medical practitioner, being Osmani’s treating psychiatrist in Australia.

The AAT considered that the more difficult question in this matter was whether the medical treatment that Osmani obtained in Croatia was of a kind that was not available to him in Australia. The AAT commented that the treatment he sought in Croatia was available in Australia. The AAT found that the fact that it was difficult to find readily available treatment in Australia does not mean that the treatment is not available in Australia. The evidence before the AAT was that there were residential treatment programs available in Australia, in the public health system, but that there were waiting periods for places in the programs.

The AAT commented, however, that if it had been the case that the only treatment available to Osmani had been private treatment and the cost of the treatment was prohibitive, the AAT would have been satisfied that the treatment was not available to Osmani in Australia. The AAT concluded that it would not be correct to say that the kind of treatment is available when it is not affordable by the person seeking the treatment.

The AAT further commented that the effectiveness of the treatment available overseas, as against the effectiveness of similar treatment in Australia, is not a relevant consideration for the purposes of the Act.

Formal decision

The AAT affirmed the decision under review.

[S.O.]