Armstrong and Secretary, Department of Social Services (Social services second review)
[2018] AATA 3018
•16 August 2018
Armstrong and Secretary, Department of Social Services (Social services second review) [2018] AATA 3018 (16 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0405; and 2018/0406
Re:Mr Gary Armstrong
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President Ian Hanger AM QC
Date:16 August 2018
Place:Canberra
The reviewable decision dated 20 December 2017 is affirmed.
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Deputy President Ian Hanger AM QC
Catchwords
SOCIAL SECURITY – disability support pension – whether Mr Armstrong’s disability support pension was correctly suspended – whether Mr Armstrong’s disability support pension was correctly cancelled – decision under review affirmed.
Legislation
Social Security Act 1991 ss 1217, 1218
Social Security (Administration) Act 1999 ss 80, 109Cases
Armstrong and Secretary, Department of Social Services [2017] AATA 1545
Kristoffersen and Secretary Department of Social Services [2015] AATA 806
Mentink v Secretary Department of Social Services [2016] FCAFC 39Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80
REASONS FOR DECISION
Deputy President Ian Hanger
16 August 2018
INTRODUCTION
The Applicant, Mr Gary Armstrong, appeals against two decisions: the first is the decision made on 28 May 2014 to suspend his disability support pension (DSP); and the second is a quite independent decision made on 5 June 2014 to cancel his DSP. I shall deal with these in turn.
The decision to suspend Mr Armstrong’s DSP
Mr Armstrong was granted the DSP on 3 October 2013. On 21 January 2014 he went to Vietnam. The Department of Human Services (the Department) became aware of that and wrote to him on 24 January 2014 requesting that he telephone the Department. He did that on 10 February 2014 and in the course of that conversation advised the Department that he had travelled to Vietnam to tie up some loose ends and would be returning to Australia to undertake further medical treatment. He was advised that he was considered an Australian resident but that his DSP payments would only stay current for a period of six weeks while he was overseas and would then be suspended until he returned to Australia. That caused him to write a letter on 16 February 2014 to the Department requesting that he be exempted from what he referred to as “overseas residency requirements”. For present purposes it is irrelevant, but that letter tends to illustrate that he may not at the time have been an Australian resident. The basis of his request is:
(a)He will be forced to live with his former partner which would be detrimental to their estranged relationship and would lead to the loss of their home.
(b)Being obligated to live in Australia will force him to draw on additional services such as Medicare, pension and pharmaceutical concessions.
(c)Day-to-day living is cheaper in Vietnam compared to Australia.
(d)He will be forced to dispose of his furniture and effects in Vietnam.
(e)He provides valuable administrative support to a community organisation in Vietnam.
(f)He has many friends in Vietnam.
(g)There is no information or legislation which supports the reasoning behind the conditions regarding overseas residency.
(h)He has worked in Australia and paid taxes for nearly 50 years.
On 4 March 2014 the Department suspended the Applicant’s DSP because he was still overseas and the six-week period had expired.
It was at this point that an error occurred which had significant ramifications for Mr Armstrong. On 2 March 2014 Centrelink wrote a letter to him. That is before his DSP was suspended. It is common ground that this letter dated 2 March 2014 was not sent until 7 March 2014. However, on 6 March 2014, after learning of the suspension of 4 March 2014, Mr Armstrong phoned the Department to dispute the suspension. The customer service officer advised him that his request was being assessed by a different team and that they would contact him to explain the relevant provisions regarding overseas travel. When he received the document of 7 March 2014, not unnaturally, Mr Armstrong believed that it was up-to-date.
The document said:
“Your Disability Support Pension
Payment from 18/02/2014 - 03/03/2014 due on 05/03/2014 $812.10
Payment from 04/03/2014 - 17/03/2014 due on 19/03/2014 $758.20
Payment from 18/03/2014 - 31/03/2014 due on 02/04/2014 $770.80
Regular Payment from payment date 16/04/2014
Disability Support Pension $766.00
Plus Pension Supplement $21.90
Less Debt Repayment $15.00
Total $772.90
· Your payment has changed. The change in payment occurred because there was a change in your circumstances or income and assets, or changes to indexation.”
Mr Armstrong says that on receiving the letter he thought that it was a response to his complaint in his letter of 16 February 2014 and his phone call of 6 March 2014. He thought that the reduction referred to was because he was in Vietnam. He says that he was elated to receive the letter and told his friends and advised his family of his appreciation of Centrelink’s sympathetic understanding of his position.
I accept his evidence on this point. He was inadvertently misled. He says that had he known that his letter of 16 February 2014 (which had not been acknowledged) was not being attended to, and had the DSP not ceased, he would have returned to Australia in March for medical treatment which had been rescheduled to May and not lost his DSP and could have got the Age Pension earlier than he did.
That may give rise to a CDDA claim but it does not affect the application of the law to his situation.
Under s 80(1) of Social Security (Administration) Act 1999 (the Administration Act), the Secretary, if satisfied that Social Security is being or has been paid to a person who is not or was not qualified for the payment, or to whom the payment is not or was not payable, is to determine that the payment is to be suspended or cancelled. The Secretary has no discretion in the matter.[1]
[1] Mentink v Secretary Department of Social Services [2016] FCAFC 39
The Social Security legislation at the relevant time enabled a DSP recipient to leave Australia for six weeks and continue to receive the DSP while absent. The Social Security Act 1991 also provided for that time to be extended in exceptional circumstances.[2] There were no exceptional circumstances that applied to Mr Armstrong. The Secretary had no choice but to suspend the DSP payments at the end of the maximum portability period which was 4 March 2014.[3]
[2] Sections 1217,1218.
[3] See also Kristoffersen and Secretary Department of Social Services [2015] AATA 806 at [19].
I affirm the decision to suspend the DSP from 4 March 2014.
The decision to cancel the DSP on 29 May 2014
On 5 June 2014 an Authorised Review Officer (ARO) affirmed a decision made on 29 May 2014 to cancel the Applicant’s DSP on the basis that he was not an Australian resident and therefore not qualified to receive the DSP. This issue was considered by this Tribunal in Tier 1 and Tier 2 reviews in relation to pension entitlements. While I am not bound by previous findings of fact made by previous tribunals, I am entitled to have regard to those findings and will do so as there has been no new relevant evidence put before me on this hearing.[4]
[4] Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 at [26] to [28].
In Armstrong and Secretary, Department of Social Services[5] Senior Member Stefaniak said about Mr Armstrong:
“I am prepared to accept [the Applicant] again became a resident of Vietnam after 29 May 2014 as he did not appeal the decision of the Department in cancelling his DSP and because he then stayed in that country until April 2016 as already discussed.”
[5] [2017] AATA 1545 at [92-93]
As the Senior Member said, “the frequency and duration of a person’s travel outside Australia” is a very important factor.[6] The evidence before me is that in the period from June 2009 to June 2014 Mr Armstrong had periods totalling four years out of five years in Vietnam. He was in Australia for 18 weeks from September 2013 but that was for treatment for his medical condition. Returning to Vietnam on 21 January 2014 he remained there until at least June 2014.
[6] Supra at [40]
As at the date of the decision he was renting an apartment in Vietnam with a lease due for renewal in June 2014. He told the ARO that he owned a place in Australia with his ex-partner but that she lives there permanently. He said he had children, grandchildren brothers and sister and mother living in Australia. He made it clear in his letter set out above that his preference was to live in Vietnam with friends there and his voluntary work there.
I am satisfied that at the date of the decision he was a resident of Vietnam.
The Secretary had no choice but to cancel the DSP on the basis of his residence, and also for the same reasons that the Secretary was obliged to suspend the DSP under s 80(1), in that the Applicant remained out of the country after 4 March 2014. At the time of cancellation he had been out of Australia for eighteen weeks.
I affirm the decision to cancel the DSP.
Other matters
The Respondent submits that even if the two applications which I have decided above had been decided in Mr Armstrong’s favour, it would make no effective difference to him.
Section 109(2) of the Administration Act provides that:
If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and …
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
Mr Armstrong was given the relevant notices. If I had made a decision in either matter in favour of Mr Armstrong, the date of the effect of that decision is the day on which the application for review was made. The applications were made in one case on 29 August 2017, and in the other, 29 November 2017. Those are the relevant dates but as at those dates Mr Armstrong was already in receipt of the Age Pension.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Ian Hanger
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Associate
Dated: 16 August 2018
Date(s) of hearing: 15 August 2018 Date final submissions received: 15 August 2018 Applicant: In person Solicitors for the Respondent: Ms C Campbell, Department of Human Services
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