Armstrong and Secretary, Department of Social Services (Social services second review)

The Administrative Appeals Tribunal (AAT) considered an appeal by Mr Gary Armstrong against two decisions made by the Secretary of the Department of Social Services. The first decision, made on 28 May 2014, was to suspend Mr Armstrong’s disability support pension (DSP). The second, independent decision, made on 5 June 2014, was to cancel his DSP.

The primary legal issues before the Tribunal were whether the suspension and subsequent cancellation of Mr Armstrong’s DSP were correctly made under the relevant provisions of the *Social Security (Administration) Act 1999* and the *Social Security Act 1991*. Specifically, the Tribunal had to determine if Mr Armstrong qualified for the continued payment of his DSP while absent from Australia, and if he remained an Australian resident for the purposes of receiving the pension.

Deputy President Ian Hanger P affirmed the decision to suspend Mr Armstrong’s DSP from 4 March 2014. The Tribunal noted that under section 80(1) of the Administration Act, the Secretary has no discretion but to suspend or cancel payments if satisfied that a person is not qualified or the payment is not payable. While the legislation permitted DSP recipients to be absent from Australia for six weeks, with potential extensions in exceptional circumstances, the Tribunal found no such exceptional circumstances applied to Mr Armstrong. The decision to cancel the DSP on 29 May 2014 was also affirmed. The Tribunal had regard to previous findings that Mr Armstrong had spent significant periods, totalling four years out of five between June 2009 and June 2014, in Vietnam. His return to Australia in September 2013 was for medical treatment, and he returned to Vietnam in January 2014, remaining there until at least June 2014, renting an apartment with a lease due for renewal. The Tribunal concluded that the frequency and duration of his travel outside Australia indicated he was not an Australian resident for the purposes of receiving the DSP.