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

This matter concerned an appeal by an applicant against the cancellation of his Disability Support Pension (DSP) by the Secretary of the Department of Social Services. The applicant, who had been diagnosed with a degenerative genetic condition, had been receiving DSP since 2002. The dispute arose when the applicant's DSP was suspended and subsequently cancelled after he remained outside Australia for a period exceeding the standard 28-day portability limit. The Administrative Appeals Tribunal was required to determine whether the applicant was entitled to an unlimited portability period for his DSP.

The primary legal issues before the Tribunal were whether the applicant qualified for an unlimited maximum portability period under the relevant provisions of the Social Security Act 1991 (Cth), specifically section 1218AAA, which deals with severely impaired individuals. This involved determining if the applicant was "severely impaired" at the time of his departure from Australia, if he had sought a written determination from the Secretary to that effect prior to leaving, and if his absence was due to circumstances that would permit an extension of the portability period. The Tribunal also considered whether the Secretary had discretion to extend the portability period or if an applicable international social security agreement would override the prescribed maximum portability period.

The Tribunal reasoned that to qualify for an unlimited portability period under section 1218AAA, the applicant needed to satisfy several conditions while still in Australia. These included receiving DSP, the Secretary being satisfied that his impairment was severe and would continue to be so for at least five years, and that this severe impairment would prevent him from performing any work independently of a support program within the next five years. The Tribunal found that the applicant had not sought, nor received, such a determination from the Respondent prior to his departure. While the applicant's condition was acknowledged as permanent, the Tribunal concluded that the additional evidence presented did not support the contention that he was "severely impaired" for the purposes of section 1218AAA at the relevant time.

Consequently, the Tribunal affirmed the decision to cancel the applicant's DSP. The applicant's DSP was suspended on 12 February 2016, after the initial 28-day portability period expired, and was ultimately cancelled on 30 December 2016. The Tribunal noted that the applicant had been granted a generous period of suspension and that, after this extended period, the cancellation was an appropriate exercise of discretion by the decision-maker, who was unaware of the applicant's impending return. The applicant was therefore required to re-apply for DSP upon his return to Australia under the then-current legislative requirements.