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

This matter concerned an appeal by Mrs Ashard against the Secretary of the Department of Social Services regarding the cancellation of her Disability Support Pension. The dispute arose because Mrs Ashard's absence from Australia exceeded the standard portability period, triggering a medical review. The case was heard by Ms A F Cunningham, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Mrs Ashard qualified for extended portability of her pension beyond the initial 28-day period, and whether her impairments met the threshold for unlimited portability under the relevant provisions of the Social Security Act 1991 (Cth). Specifically, the Tribunal had to consider if the circumstances of her absence, namely visiting her ill mother in New Zealand, constituted a valid reason for extending portability under section 1218C of the Act, and if she met the criteria for unlimited portability under section 1218AAA.

The Tribunal reasoned that for extended portability under section 1218C, the qualifying event, such as a serious illness or hospitalisation of a family member, must have occurred or begun during the period of absence. While Mrs Ashard provided evidence of visiting her ill mother, she did not establish that the event giving rise to her extended absence began during that period. Furthermore, the Tribunal noted that ignorance of the law, including changes to portability rules, is not a defence, and there is no obligation on the Department to proactively inform recipients of such changes. Mrs Ashard also did not satisfy the criteria for unlimited portability under section 1218AAA, which requires a severe impairment attracting 20 points or more under the Impairment Tables.

Consequently, the Tribunal affirmed the decision not to grant extended portability and affirmed the decisions under review.