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

This matter concerned an appeal by Mr Chambers against the Secretary of the Department of Social Services regarding the suspension of his disability support pension. The dispute centred on whether Mr Chambers qualified for unlimited portability of his pension during the period of 20 December 2019 to 17 January 2020. The decision was heard by K Millar SM.

The primary legal issue before the Tribunal was to determine whether Mr Chambers' disability support pension was correctly suspended. This required the Tribunal to ascertain whether Mr Chambers had unlimited portability for his pension during the specified period, or if his portability was limited to the maximum period prescribed by the Social Security Act 1991. The Tribunal also considered Mr Chambers' request to amend his sought outcome to include the granting of a special category visa and to have the matter remitted to the Secretary for reconsideration of this visa.

The Tribunal's role was to stand in the shoes of the original decision-maker and determine the correct and preferable decision based on the material before it. The Tribunal noted that the decision under review was the suspension of the pension, and to assess this, it was necessary to examine the portability provisions of the Act. Specifically, the Tribunal considered s 1215(1)(b) and s 1217(4) of the Act, which establish that a payment is not payable after the end of the portability period unless that period is unlimited. The Tribunal also examined the conditions for unlimited portability under s 1218AAA(1) of the Act, which require a person to be receiving a disability support pension, have a severe impairment that will persist for at least five years, and that this impairment would prevent them from performing any work independently of a program of support if they were in Australia. The Tribunal found that a previous decision-maker had incorrectly applied s 114 of the Social Security (Administration) Act 1999, as this provision relates to favourable determinations and does not apply to determinations made under s 1218AAA of the Act.

The Tribunal set aside the decision under review and remitted the matter to the Secretary for reconsideration. This reconsideration was to include the assessment of whether Mr Chambers qualified for unlimited portability and to consider his request for a special category visa.