Editors --- "Newstart allowance: portability" [2010] SocSecRpr 47; (2010) 12(4) Social Security Reporter, Article 2

• Background
• The issue and the law
• The evidence
• Conclusion
• Formal decision

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Newstart allowance: portability

GUZIAK AND SECRETARY TO THE DEEWR

(2010/786)

Decided: 14th October 2010 by Mr Wulf

Background

Guziak was receiving newstart allowance when he travelled to Poland to visit his mother who was seriously ill. He left on 25 November 2009 and returned to Australia on 11 February 2010.

The Department decided that Guziak was not entitled to newstart allowance while he was absent from Australia. This decision was affirmed by an authorised review officer and the SSAT.

The issue and the law

Newstart allowance can be paid to a person when they are overseas subject to portability provisions (ss. 1213, 1215 and 1217).

The question in this case was whether in the facts of this case – there was an ‘allowable absence’ as defined in s. 1217. that is:

a 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.

The phrase – ‘acute family crisis’ is defined in s.1212A as follows:

1212A For the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:

(a) for the purpose of visiting a family member who is critically ill; or

(b) for the purpose of visiting a family member who is hospitalised with a serious illness; or

(c) for a purpose relating to the death of a family member; or

(d) for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:

(i) is facing a family member; and

(ii) is beyond the control of the family member.

The evidence

Guziak’s evidence was that his mother required periodic hospitalisation to receive intravenous medication. There was no one else in Poland who could assist her. He stayed at his mother’s house and cared for her during his entire stay. She refused to go to hospital and was completely immobilised, requiring constant care. At the time he was in Poland, the country suffered from one of its coldest winters with temperatures below 30° and numerous houses being left without power. On 15 January 2010 he obtained care for his mother through a third party.

A medical report was produced stating that his mother required constant care by family as well as constant medical care. His mother’s condition was described as - ‘chronic, progressive and irreversible character’.

Conclusion

The Tribunal considered the case of Patania and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 840 noting that the applicant’s mother suffered similar conditions to Patania’s mother.

The Tribunal noted the medical evidence that the applicant’s mother’s condition was described as ‘chronic, progressive and irreversible character’.

The Tribunal accepted that the applicant provided ongoing care to his mother and that the climatic conditions during his stay were extreme and impacted on his mother’s health. Finally, the Tribunal accepted that the applicant lived with his mother for his entire stay in Poland.

The Tribunal noted that there is no definition of ‘critical illness’ in the Act and referred to the decision in the matter of Pataniawhere the word was defined as – ‘disease or state in which death is possible or imminent’. The Tribunal did not accept this definition as it was considered to be based on a source (an online dictionary) that would not normally be used by Australian courts. The Tribunal referred to the decision of Al Umari and Secretary to the Department of Family and Community Services [2003] AATA 431, where the senior member used the definition of ‘critically’ in the Macquarie dictionary and/or in the alternative, the Oxford dictionary.

In this case, the Tribunal stated: ‘critically must be given its ordinary meaning. That meaning is that the person’s condition must be severe or grave (Macquarie Dictionary: 2nd Ed) or that there must be a crisis in the disease (New Shorter Oxford Dictionary: 4th Ed).’

Considering the entire evidence, the Tribunal concluded that the nature and seriousness of the applicant’s mother’s medical conditions were such that ‘death was possible or imminent’ at the time that the applicant visited. The Tribunal was therefore satisfied that she was ‘critically ill’ during that period and that the temporary absence of the applicant was to ‘attend an acute family crisis’.

The Tribunal concluded therefore that the applicant remained entitled to newstart allowance during the period of his absence.

Formal decision

The AAT set aside the decision under review and ordered the Department to pay the applicant newstart allowance for the period 25 November 2009 to 15 January 2010.

[R.P.]