Barbara Niemczyk and Secretary, Department of Social Services

[2014] AATA 618

[2014] AATA 618  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6017
Re	Barbara Niemczyk
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	1 September 2014
Place	Brisbane

The Tribunal affirms the decision under review.

............................[Sgd]............................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Whether maximum portability period of six weeks reached – Applicant not eligible to receive Disability Support Pension -Decision affirmed

LEGISLATION

Social Security Act 1991 ss 94, 1217, 1218AAA.

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

1 September 2014

INTRODUCTION

1. I have to determine whether Disability Support Pension (“DSP”) should have been paid to Barbara Niemczyk (“the applicant”) from 6 June 2013 to 30 June 2013 while she was absent from Australia.

   BACKGROUND

2. The applicant is eligible to receive DSP. On 22 January 2003 the applicant attended a Centrelink Customer Service Centre when she advised an officer that she intended to travel to Poland on 25 April 2013 and return on 30 June 2013. The records of that interview disclosed that the applicant was informed that DSP could only be paid until
   6 June 2013 if she had not then returned to Australia.

3. On 4 July 2013 the applicant was sent a letter which advised her that “After 42 days outside Australia. Your Clean Energy Supplement and Disability Support Pension can no longer be paid”. She was also advised that her Pensioner Concession Card would be cancelled. That letter also stated that her pension supplement could only be paid up to
   6 June 2013.

4. The applicant departed from Australia on 25 April 2013 and returned on 30 June 2013.

   PRIOR DECISIONS

5. On 6 June 2013 a decision was made to suspend payment of DSP which was restored on her return to Australia. On 3 July 2013, an Authorised Review Officer affirmed that decision on internal review. On 26 August 2013 the decision was affirmed by the
   Social Security Appeals Tribunal.

   LEGISLATION

6. Section 1217 of the Social Security Act 1991 (“the Act”) defines the portability of various social security benefits and prescribes allowable absences. Section 1217 provides that there is a maximum portability period of 6 weeks except where a provision of Subdivision 2B of Part 4.2 of Chapter 4 of the Act applies.

7. Section 1218AAA provides that:

   (1)The Secretary may make a written determination that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist: the person is receiving disability support pension;

   (a)the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));

   (b)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

   (c)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

   (2)The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:

   (a)the person is unable to return to Australia because of either of the following events:

   (i)        a serious accident involving the person;

   (ii)        the hospitalisation of the person; and

   (b) the person's portability period for disability support pension had not ended at the time the event occurred.

   (3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.

   (4)       A determination under subsection (1) is not a legislative instrument.

   (5)       In this section:

   "work" means work:

   (a)that is on wages that are at or above the relevant minimum wage; and

   (b) that exists in Australia, even if not within the person's locally accessible labour market.

   CONSIDERATION

8. There is no issue that the applicant was away from Australia for more than 6 weeks. In evidence are the immigration movement records which disclose that the applicant was away from Australia from 25 April 2013 to 30 June 2013.[1] Unless the exceptions in Subdivision 2B of Part 4.2 of Chapter 4 apply, the applicant was not entitled to be paid DSP from 6 June 2013 to 30 June 2013. There is no evidence that would warrant the consideration of any other provision of the Act.

   [1] T-Documents, p 14.

9. The exception in section 1218AAA of the Act does not apply to the case of the applicant. The applicant has provided a report from Dr Liong that she has a bad back for which she has been treated with physical therapy.[2] There is no evidence that the applicant has a severe impairment in terms of s 94(3B) of the Act. There is also no evidence that the applicant is prevented by a severe impairment which would prevent her from undertaking any work independently of a program of support within the meaning of s 94(4)) within the next 5 years. In fact, the applicant performs voluntary work for a religious charity on a limited basis for two days per week. There is an unchallenged assessment that the applicant is able to work for more than 8 hours per week with intervention. The applicant is unable to satisfy the test in s 1218AAA(1)(d) of the Act.

   [2] Exhibit B.

10. I wish to record that the applicant has been honest in making full disclosure of her intended travel to the Department. It would seem that the applicant would benefit from being provided with the assistance of a social worker so that she can be advised of available community supports.

11. I would certainly support the recommendation of the Social Security Appeals Tribunal (“SSAT”) that consideration should be given to investigating whether a compensation payment is appropriate under The Scheme for Compensation for Detriment caused by Defective Administration (“CDDA scheme”). The applicant has raised the question of whether she has been provided with incorrect advice from a Centrelink officer. The applicant also made reference to a Departmental website concerning “Disability Support Pension while travelling outside Australia” which contains an example of a person being paid DSP after an absence of 26 weeks. The applicant was prudent in booking her tickets after visiting the Centrelink office.

    CONCLUSION

12. The applicant was not eligible to receive DSP from 6 June 2013 until her return to Australia on 30 June 2013 as she had been outside Australia for more than the maximum portability period of six weeks.

    DECISION

13. I affirm the decision under review.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

..............................[Sgd]..........................................

Associate

Dated 1 September 2014

Date of hearing	30 July 2014
Applicant	In person
Solicitors for the Respondent	Joe Guthrie, Department of Human Services