Clemente; Secretary, Department of Social Services and (Social services second review) - [2019] AATA 263

Clemente; Secretary, Department of Social Services and (Social services second review) [2019] AATA 263 (16 January 2019)
Division:GENERAL DIVISION
File Number: 2018/0999
Re:Secretary, Department of Social Services
APPLICANT

AndRosetta Clemente
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:16 January 2019
Place:Adelaide

The decision under review is set aside and in substitution the Tribunal decides that the Respondent’s Carer Payment and Carer Allowance were correctly suspended from 16 June 2017 to 30 July 2017 inclusive.
...................[Sgnd]..........................
Senior Member B J Illingworth
CATCHWORDS
SOCIAL SECURITY – Overseas portability of social security payments – Respondent receiving Carer Payment and Carer Allowance – Portability period – Respite period – Whether portability period should be extended – Definition of ‘family member’ – Whether Respondent’s uncle a ‘family member’ as defined by the Act – Whether Respondent unable to return to Australia – Whether Respondent intended to return within the portability period – decision under review set aside.
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Raad & Department of Family and Community Services [2000] AATA 387
Re Secretary, Department of Family and Community Services and Markovic [2002] AATA 908
Re Wolff and Secretary, Department of Employment and Workplace Relations [2006] AATA 173
Re Van and Secretary, Department of Education Employment and Workplace Relations [2012] AATA 91
Re O’Chee and Secretary, Department of Employment [2016] AATA 58
Re Ghafoor and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 159
Re Farah and Secretary, Department of Employment and Workplace Relations [2007] AATA 1945
Re Hassan and Secretary, Department of Employment and Workplace Relations [2007] AATA 1945
Re Mahamud and Secretary, Department of Social Services [2017] AATA 642
Re Jamal and Secretary, Department of Social Services [2016] AATA 43 upheld on appeal in Jamal v Secretary, Department of Social Services [2017] FCA 916
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Senior Member B J Illingworth
16 January 2019
INTRODUCTION

This is an application by the Secretary, Department of Social Services (“the Applicant”) to review a decision of the Administrative Appeals Tribunal (Social Security & Child Support Division) (“AAT1”) made on 1 February 2018.
On 13 December 2017, an Authorised Review Officer (“ARO”) found that Ms Clemente’s (“the Respondent”) portability period for Carer Payment and Carer Allowance (“Carers Payment”) should not have been extended, and that the Carers Payment was correctly suspended on 16 June 2017.
The Respondent lodged an application for review of that decision, and the AAT1 subsequently substituted a decision that the portability period should be extended, and that the Respondent be paid Carers Payment for the extended period, namely from 16 June 2017 to 30 July 2017. It is that decision which is the subject of the application for review.
The Applicant was represented by Mr Morris of counsel. The Respondent was represented by Ms Riley, an advocate from the Welfare Rights Centre. The following documents were received into evidence:
(a)T documents pages 1 -81 inclusive – Exhibit A1;
(b)Extract of Centrelink Electronic Record – Exhibit A2; and
(c)Death Certificate of the Respondent’s uncle dated 1 July 2017 – Exhibit R1.
BACKGROUND
The Respondent’s husband was aged approximately 67 years and in receipt of the Age Pension. The Respondent had been her husband’s carer since 2012 and received Carers Payment in accordance with the Social Security Act 1999 (“the Act”).
The Respondent was born in 1957 in Italy. She lived in a regional town. Her father was a bricklayer/stonemason and was required to work away from their town. For the first 10 years of her life, the Respondent only saw her father twice a year. The Respondent’s uncle, who lived in a neighbouring town 5 km away, assisted the Respondent’s family and was a father figure to the Respondent.
The Respondent migrated to Australia with her parents when she was approximately 10 years old. The family formed part of the Calabrian community within Adelaide and her father worked for Pioneer Cement for approximately 45 years. The Respondent and her family remained in constant contact with their family in Italy, including her uncle.
According to the exhibit evidence before the AAT1, the Respondent departed Australia on 5 May 2017 and was ticketed to return to Australia on 30 June 2017. The Respondent was told shortly before to her departure that her Carers Payment would cease on and from 16 June 2017, as her portability period would only run for 6 weeks from her date of departure.
While overseas in Italy, the Respondent visited her uncle Mr Belfari who was aged approximately 90 years. He had for some time been suffering from dementia.
In about the first week of June 2017, and during the portability period, Mr Belfari suffered a fall and broke his hip. He was hospitalised however because the hospital was unable to find a match for his blood type they could not perform any medical procedures and he was sent home. Mr Belfari passed away on 1 July 2017.
The Respondent did not return to Australia on or before 16 June 2017 and thereafter her Carers Payment was suspended.
The Respondent remained overseas past her ticketed return date and returned to Australia on 31 July 2017, approximately 6 weeks after her portability period ended.
LEGISLATIVE FRAMEWORK AND PRINCIPLES
It was agreed that the Act and the Social Security (Administration) Act 1999 (“Administration Act”) were the relevant legislative provisions for the consideration of the Tribunal.
Before a person can receive a social security payment, the person must be qualified for the payment, and the payment must be payable according to s 37(1) of the Administration Act.
The provisions relating to qualification in this matter are found under Division 1 headed “Qualification for and payability of carer payment”, and “Subdivision A - Qualification”. Section 198AC is relevant as it deals with the temporary cessation of care. It relevantly provides:
198AC       Effect of cessation of care etc. on carer payment
Continuation of payment where temporary cessation of care
(1)     Subject to subsection (3), if:
(a)a person is qualified (except under section 197G or 197H) for a carer payment:
(i)     because the person is personally providing constant care for a care receiver or care receivers; or
(ii)     if the person is qualified because of section 197F--because the person is personally providing care for care receivers; and
(b)the person temporarily ceases to provide that care for the care receiver or care receivers;
the person does not cease to be qualified for the carer payment merely because of that cessation.
Subsection 198AC(3) relates to Carer Payment, and provides that a person can have 63 days “respite” in any calendar year without losing their qualification for Carer Payment (“Respite period”). The provision also allows the Secretary the discretion to extend the Respite period for any “special reason” found appropriate:
198AC Limit on subsections (1) and (2)
(3)Subject to subsection (3B), the period, or the sum of the periods, for which subsection (1) or (2), or a combination of those subsections, can apply is:
(a) 63 days in any calendar year; or
(b)another period that the Secretary, for any special reason in the particular case, decides to be appropriate.
Section 957 of the Act relates to Carer Allowance and includes the same provisions as s 198AC.
It follows that sections 198AC and 957 (“the Respite provisions”) preserves a person’s qualification for Carer Payment and Carer allowance, as opposed to the payability of such social security payments, despite non constant care. If a special reason exists, a carer can cease to provide the care receiver with constant care for more than 63 days in a calendar year, and still retain qualification for Carers Payment.
The Tribunal should have regard to the Social Security Guide (“the Guide”), which provides assistance with respect to these provisions, unless there are cogent reasons not to do so.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Instruction 3.6.4.80 of the Guide under the heading “Carer travels WITHOUT the care receiver” relevantly provides:
Portability rules apply to temporary overseas absences. If the carer travels overseas without the care receiver, and intends to return to the care situation, then the temporary cessation of care provisions apply as well as the portability rules. The carer remains qualified for CP from the date of departure for the allowed portability period, if the carer has sufficient temporary cessation of care days available (3.6.4.40).
It follows that the Respondent will remain qualified for the Carers Payment while overseas until her 63 day Respite period expires. The Respondent however can only receive payments, i.e. the Carers Payment is only payable, for the six week portability period.
Division 2 of the Act is headed “Portability of Social Security Payments.” Within that Division the following sections were relevant with respect to the extension of the portability period and whether the Carers Payment was payable; namely ss 1213, 1215, 1217, 1218C and 23(14) which defines “family member” (“the Portability provisions”).
Pursuant to s 1213 of the Act:
1213 Persons to whom Division applies
This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:
(a)immediately before the period of absence commenced, the person was receiving a social security payment (the payment ) mentioned in column 2 of the table at the end of section 1217; or
(b)during the period of absence, the person's claim for such a payment is granted under the Social Security (Administration) Act 1999 .
Pursuant to s 1215 of the Act:
1215Some payments generally portable with time limit
(1)If the person's maximum portability period for the payment is not an unlimited period, the following rules apply:
(a)throughout the person's portability period for the payment, the person's right to continue to be paid the payment is not affected merely by the absence;
(b)throughout so much (if any) of the period of absence as occurs after the end of the person's portability period for the payment, the payment is not payable to the person.
Pursuant to s 1217 of the Act, in referencing the table at the end of the section, Column 2 identifies the different types of payment under the Act that apply. Column 4 references the different types of absences to which the relevant provisions apply. Column 5 references the relevant portability period. Hence by reference to item 6 on the table, in respect of persons in receipt of Carers Payment who has a temporary absence, they have an entitlement to a six week portability of the Carers Payment, subject to s 1218 of the Act.
Section 1218C(1) of the Act is headed “Extension of Persons Portability Period” and gives the Secretary a discretion to extend a person’s Portability period if satisfied such person is unable to return to Australia because of an event listed within the section. Relevantly these included:
(a) a serious accident involving a family member;
(b) a serious illness of a family member;
(c) the hospitalisation of a family member; [and]
(d) the death of a family member…
Section 1218C(2) of the Act prohibits the Secretary extending the portability period unless such event occurred or began during the period of absence.
In deciding whether a relevant person was unable to return within the portability period because of an event described in s 1218C, it is important to consider whether the relevant person had formed an intention to return within that period before their departure: see Re Farah and Secretary, Department of Employment and Workplace Relations [2007] AATA 1945, Re Hassan and Secretary, Department of Employment and Workplace Relations [2007] AATA 1945, Re Mahamud and Secretary, Department of Social Services [2017] AATA 642, and Re Jamal and Secretary, Department of Social Services [2016] AATA 43 (upheld on appeal in Jamal v Secretary, Department of Social Services [2017] FCA 916).
Relevantly in Jamal v Secretary, Department of Social Services [2017] FCA 916, Perry J said as follows:[2]
…it was plainly open on the evidence, if not inevitable, for the Tribunal to find that the applicant’s shoulder injury did not prevent him returning to Australia during the 6 week portability period despite the injury occurring during that period, because the applicant had booked a flight to return Australia after the 6 week period had expired in any event. As such, it was not the shoulder injury that prevented his return within that period. He had never planned to do so.
[2] Jamal v Secretary, Department of Social Services [2017] FCA 916 at [21].
Section 23(14) provides a limited definition of the meaning “family member” for the purposes of the interpretation of s 1218C of the Act, and includes a partner, parent, brother, sister or child of the relevant person. Relevantly in this case, section 23(14)(c) allows the Secretary and now the Tribunal the discretion to treat, for the purpose of this definition, the Respondent’s uncle as one of the Respondent’s relations referred to in s 23(14)(a) or (b), namely a parent.
Instruction 1.1.F.60 of the Guide provides assistance for the application of the discretion referred to in s 23(14)(c). The Guide provides as follows:
The discretion in the SSAct section 23 (14)(c) should be used only in respect of a family relationship that is similar to that of a partner, mother, father, brother, sister or child of the relevant person and is also such that it should be treated as such a relationship.
It therefore becomes necessary to examine the family relationship between the Respondent and her uncle, and whether it can be characterised as that of a father-daughter relationship.
ISSUE
In summary, the issue before the Tribunal is whether s 1218C of the Act operated to extend the Respondent’s portability period such that she remained qualified for Carers Payment throughout the period of her absence from Australia. In answering this question the Tribunal must consider the following:
(a)Should the Respondent’s uncle be treated as a “family member” as defined pursuant to s 23(14) of the Act;
(b)At the time of departure did the Respondent intend to return to Australia within the portability period; and if so, was the Respondent unable to return to Australia within the that period because of an event referred to in section 1218C(1) of the Act; and
(c)If so, can the Respondent’s portability period be extended to 30 July 2017 considering the operation of the Respite and Portability provisions of the Act.
RESPONDENT’S EVIDENCE
At the outset, the Respondent told the Tribunal that the return date of the original ticket was never 30 June 2017, and has always been 30 July 2017. Despite Centrelink records, and the AAT1 decision clearly stating the Respondent originally booked her flight from 5 May 2017 to 30 June 2017, the Respondent said she only just noticed this was the wrong date, and it should have been recorded as 30 July 2017.
The Respondent said that before the flights were booked she contacted Centrelink by telephone, and she was advised that after 8 weeks her payments would be reduced by $50 a fortnight. She was prepared to accept a reduction in payments after 8 weeks and until her return to Australia.
The Respondent said that after she spoke to Centrelink, her son booked the flights on either 21 or 29 September 2016. The ticket was booked for 5 May 2017 to return 30 July 2017.
The Respondent said when she called Centrelink a second time, she was given different advice, namely that she could be away for 63 days respite without her payments being suspended.
The Respondent said she contacted Centrelink again on 28 April 2017. An employee of Centrelink gave different advice again, namely that after six weeks the payments would stop.
The Respondent said that at that stage it was too late to change the ticket and she decided that she would deal with the change of her return date once she was in Italy.
The Respondent said she was very close to her family in Italy. She said she never stopped contact with her uncle throughout her time in Australia. At first it would be monthly letters and then telephone calls at least once a month.
She said her uncle’s daughters told her that he was very sick and had been diagnosed with dementia. She said she had an opportunity to go to Italy as her son and his family had decided to travel there. She said her husband was unable to come with her because of his poor health. He has a motor neuron disease and requires hospital treatment at least once a week. She said her husband encouraged her to go as he knew how close she was to her uncle and family in Italy.
The Respondent said she spent her childhood in Italy until she was aged 10 years. Her uncle looked after her and her siblings because her father needed to be in Milan for work. She said her uncle lived with his family in another town close by but would come visit them every day for at least two to three hours to check whether they needed food, money or chopped wood.
The Respondent said that although he is an uncle she looked up to him like a father. She said that when they arrived in Italy in 2017, her uncle was very happy to see her and meet her family.
The Respondent said that her uncle’s accident happened in the first week of June on or about 3 June 2017; she had been there for about a month. She said he fell and broke his hip. The ambulance brought him to a hospital about 30 minutes away. She said they couldn’t do anything for him so he was transferred to another hospital. He was there for about two and a half weeks waiting for an operation. She said eventually they were told they didn’t have blood, so he was transferred home. He passed away on 1 July 2017.
The Respondent said while in Italy she was aware of the six week time limit and was conscious that the time to remain overseas and continue to receive her Carers Payment was coming to an end. She said while in Italy she intended to change her ticket and come back within the time limit, however after the accident she said her conscience would not allow it and she wasn’t comfortable leaving the family. She said her uncle’s youngest daughter was in hospital and had major breast cancer surgery. Another daughter was in a wheelchair. She felt compelled to remain.
She said there was another daughter that could look after the uncle. That daughter has three daughters herself that live in the same village. The village is very small, about 500-600 people. She said in the south of Italy, when a family member is in hospital the family must take care of them. She said she, the sister and her daughters took it in turns looking after her uncle. She said there were five of them on rotation, helping by giving him fluids, food and keeping him company.
She said that she didn’t change her ticket after her uncle passed away because the family was destroyed and she wanted to spend time with them. She said she was too upset to change the flights and was “in pieces”.
In cross examination, the Respondent said her father immigrated to Australia before she was 10 years old, and the Respondent and the balance of her family including her mother joined her father in Australia a few months later.
She said she lived with her family for about 9 years before she married her husband and moved out of her parent’s home when aged 19 years. She said the contact with her uncle and family in Italy stayed the same after she moved into her marital home.

The Respondent said her father died in about November 2001. Her father’s death, she argued, further reinforced her perception of her uncle as a father figure.
She said her uncle came to Australia many years ago for 17 days to visit his son, the Respondent’s cousin. That cousin passed away 20 years ago. The next time she saw her uncle was in 2012 when she went to Italy for the first time since immigrating to Australia.
When questioned about the contact she had with Centrelink she again said that in September 2016 she telephoned Centrelink and was advised that after eight weeks they would take out $50 per fortnight. The Applicant referred the Respondent to Exhibit A2, the extract of Centrelink’s electronic record, which had no record of any communication in September 2016. The Respondent said she was sure that she contacted them at that time.
She said she called Centrelink a second time and they said she could be away for 63 days. On 28 April 2017 she contacted them again, and said that she was told about the six week portability period. She said if she was given the correct advice in the beginning she would have booked her flights to return within the six week period.
On 4 May 2017, the Respondent requested an appeal of the decision. She was referred to the T documents which recorded when requesting the appeal the Respondent said it was “unfair when [her] partner [is on the] age pension and can go away for longer and keep his payment.”[3] It does not mention that she was given the wrong advice.
[3] Exhibit A1, T7 p 55.
The Respondent was asked whether she informed anyone about her intention to come home early. In response she said she told her relatives and her son that she needed to be home earlier otherwise her payments would stop. She said that before she left she enquired about the cost of changing the flight and it would be about $300. She decided not to change it at that time because it was expensive and regardless she thought she could change it up to a few days before her return date and it would be the same price.
When asked if she had told anyone from the Department that she had always intended on changing her plane ticket; she said she was never asked before today.
On re-examination the Respondent was referred to her last contact with Centrelink on 28 April 2017, and was asked about her activities prior to her departure on 5 May. The Respondent said she had to organise her husband’s appointments, make sure his scripts were up to date and cook his meals. She said she cooked a meal for every day that she would be in Italy. When questioned about how many meals this involved by the Tribunal, the Respondent said she cooked a meal for everyday up to the 30^th of July 2017.
CONSIDERATION
The AAT1 did not appear to deal with or address the following questions:
(a)Whether the Respondent’s uncle should be treated as a “family member” as defined by s 23(14) of the Act;
(b)Whether the Respondent intended at the time of her departure to return to Australia before the expiration of the portability period;
(c)Whether the Respondent was unable to return to Australia because of an event within the meaning of s 1218C (1) of the Act.
Each question needed to be answered in the affirmative, before the discretion in s 1218C can be enlivened.
It is therefore necessary for the Tribunal to consider each question de novo on the evidence before it in deciding the correct or preferable decision.
There was considerable evidence before the Tribunal that dealt with the uncle’s accident during the portability period and that the accident and its consequences so impacted upon of the Respondent that she felt compelled to remain in Italy to provide him with support whilst in hospital and to then support her family during the grieving process. However before considering this evidence further, should the answer to either question (a) or (b) be no, the discretion to extend portability period is not enlivened and the Respondent is not entitled to the benefit of an extension of the portability period beyond 6 weeks. The Tribunal will therefore first deal with question (a).
Should the Respondent’s uncle be treated as a “family member”?
The Respondent submitted that the term “family member” has different meanings within the Act and referred to ReRaad & Department of Family and Community Services [2000] AATA 387 which reminds the Tribunal to take care in considering family connections and responsibilities involving migrants. In particular paragraph 105 refers to those who migrate to another country who do not necessarily cease to have any connection with their country of origin, nor family or friends who remain there. However Raad was concerned with the meaning of Australian resident as defined in subsection 7(2)(a) of the Act at the date of an application for age pension. It had nothing to do with the consideration of the meaning of “family member” pursuant to s 23(14) of the Act.
Similarly the Respondent referred to Re Secretary, Department of Family and Community Services and Markovic [2002] AATA 908 in which Senior Member Purcell decided that Markovic had sufficient reason to move from Perth to Cooper Pedy to take up a business opportunity and join his cousins who lived in Cooper Pedy; and in so doing satisfied the Activity Test enlivening an entitlement to Social Security payment under the Act. The Senior Member was required to consider whether the cousins were family members for the purposes of s 23(14) of the Act. Unfortunately the Senior Member provides no analysis as to how, in her decision, one or other cousin should be treated for the purposes of the definition as a relevant person described within the section, and in particular as a sister, brother or child of the Respondent. This decision is unhelpful.
The Respondent also directed the Tribunal’s attention to ReWolff and Secretary, Department of Employment and Workplace Relations [2006] AATA 173 in which the portability of the Applicant’s Newstart Allowance was considered. There the Applicant’s absence from Australia was due to an “acute family crisis”. The Applicant travelled with his wife to New Zealand to see his 80 year old father-in-law who was said to be critically ill having broken his neck in a fall. The Applicant was aged 55 years. He and his wife married in 1998; the same year his natural father died. The Applicant enjoyed a close relationship with his father-in-law who provided he and his wife with financial and personal advice, mortgage repayment relief and constant personal support. The Tribunal decided that the father-in-law met the requirement of a “family member” in accordance with s 23(14) of the Act.
The Applicant argued that the decisions of Re Van and Secretary, Department of Education Employment and Workplace Relations [2012] AATA 91, Re O’Chee and Secretary, Department of Employment [2016] AATA 58 and ReGhafoor and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 159 were factually similar to this matter and supports the Applicant’s argument that the Respondent’s uncle was not a family member for the purpose of s 23(14) of the Act.
In Van the Applicant was raised by her grandparents while living in Vietnam until she was aged 9 years. She thereafter migrated to Australia in 1998 with her parents and siblings. She returned regularly to visit her grandparents. In 2011, the Applicant, her mother and brother travelled to Vietnam and stayed with her grandparents. Whilst there they assisted with the care of her grandfather who was wheelchair bound. The Tribunal decided that although she lived with her grandparents until aged 9 years, it was clear she lived with her parents in Australia and her grandparents were not “any other person who could be considered a family member”.
In O’Chee the Tribunal considered the Applicant’s entitlement to Newstart Allowance during a period when he travelled to China in 2014 to visit his ill grandmother. This required consideration of s 23(14) of the Act. The Applicant was born in China in 1987 and was raised for the first 5 years of his life by his grandmother when his mother was travelling for work. The grandmother’s percentage of care, it was said, was about 50% during that time. The Applicant’s father immigrated to Australia in 1990, and in 1995 the Applicant and his mother followed. The Applicant lived with his parents when in Australia. The Tribunal decided that albeit his grandmother may have been the primary carer during the first 5 years of his childhood, she could not be regarded as “a parent” during the relevant period.
In Ghafoor, albeit the Applicant was very close to her aunt who assisted in the Applicant’s upbringing when she was a child living in Iraq and until the Applicant immigrated to Australia in 1996, the Tribunal was not satisfied that in 2006 the aunt could be regarded as a family member for the purpose of s 23(14) of the Act.
The Applicant also referred to the Respondent’s evidence that her uncle came to Australia in 2012 to visit his son, the Applicant’s cousin. The primary purpose of the visit was not to see the Respondent. No doubt, it was said, that there was a close and loving relationship between the Respondent and her uncle and broader family in Italy, but such relationship was not extraordinary and was not a type of relationship that was contemplated within the legislation and as directed by the Guide.
CONCLUSION
The Tribunal accepts that the Applicant enjoyed a close relationship with her uncle for the first 10 years of her life. He provided support to the Applicant and her family when her father worked away from home. She looked up to him. However following her arrival in Australia, the Applicant lived with her parents until her marriage at the age of 19 years. There is no suggestion that she enjoyed anything other than a close and loving relationship with her parents when in Australia.
The Applicant continued to communicate with the uncle and other family members in Italy. However there is no evidence that the uncle maintained a relationship with the Respondent that could be described as similar to that of father daughter. For example, there is no evidence of personal or financial advice being given to the exclusion of the Applicants father, nor that the uncle took on the role of father at any time including after her father’s death. The purpose of the uncle’s visit to Australia 30 years ago was to visit his son.
There was no evidence before the Tribunal that there had been a change in the relationship other than the close and loving uncle and niece relationship that had continued for much of the Respondent’s life. Until her father’s death it could not be said that the Respondent’s uncle met the test of relevant parent and nor could it be said on the evidence before the Tribunal, that since her father’s death the Respondent has otherwise engaged with her uncle in such a way that it could be said he has taken over that parental role. The overwhelming evidence is that the Applicant enjoyed a loving relationship with her uncle, as she did with her extended family.
Accordingly the Tribunal finds that the Respondent’s uncle is not a “family member” within the definition of s 23(14) of the Act and as instructed by the provisions of the Guide. The discretion to extend the portability period is not enlivened.
Even if the Tribunal is wrong in the answer to question (a), in considering question (b), the evidence before the Tribunal is not sufficient to enable the Tribunal to accept that the Respondent intended to return to Australia within the portability period. The evidence on this topic remains unsatisfactory.
The evidence of the Respondent before the Tribunal that her ticketed return date was in fact 30 July 2017 and not 30 June 2017 is of concern. The Respondent’s evidence that she was prepared to accept a reduction of $50 per fortnight in payments after 8 weeks supports the submission that at the very least initially, when the flight was booked, the Respondent intended to remain in Italy beyond the portability period, whatever period she believed that to be.
The fact that the Respondent prepared meals for her husband for the whole of her period of absence overseas is of little weight. The Tribunal accepts that the Respondent received the correct advice about her cessation of payments less than a week before her departure on 28 April 2017. However the failure to make any enquiry about a return flight to Australia in the 4 weeks following her arrival in Italy and prior to her uncle’s accident is troubling. One might reasonably have expected her to make those enquiries expeditiously upon her arrival in Italy and secure a return flight within the portability period had she truly intended to do so.
The AAT1 said that it was not in dispute that the Respondent’s ticketed return date was 30 June 2017. In evidence before the Tribunal and for the first time, the Respondent said the ticketed return date was 30 July 2017. In the absence of any evidence of flight records in proof of the ticketed return date, this inconsistency cannot be reconciled. When having regard to the evidence of intention to return to Australia as a whole, the Tribunal is unable to accept that the Respondent had, at the time of her departure, the requisite intention to return to Australia within the portability period.
The Tribunal finds that the Respondent’s uncle should not be treated as a “family member” within the meaning of s 23(14) of the Act for the purposes of extending the portability period under s 1218C of the Act. The Tribunal also finds that there is insufficient evidence from which the Tribunal can accept that at the time of departure the Respondent intended to return to Australia within the portability period.
Accordingly, the Respondent’s portability period ended on 16 June 2017, rendering her social security payments unpayable from that date.
As a consequence of the Tribunal finding that the portability period concluded on 16 June 2017, although the 63 days of respite continue and the Respondent remained qualified for the Carers Payment until the expiry of the Respite period, payments after 16 June 2017 would be unpayable. To be entitled to payments the relevant person must have both available respite days and be within the portability period.
DECISION
The decision under review is set aside and in substitution the Tribunal decides that the Respondent’s Carer Payment and Carer Allowance were correctly suspended from 16 June 2017 to 30 July 2017 inclusive.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.......................[Sgnd]...............................
Associate
Dated: 16 January 2019

Date of hearing: 30 November 2018

Advocate for the Applicant: Oliver Morris

Solicitors for the Applicant: Department of Human Services

Advocate for the Respondent: Margaret Riley

Solicitors for the Respondent: Welfare Rights Centre

Date of hearing:	30 November 2018
Advocate for the Applicant:	Oliver Morris
Solicitors for the Applicant:	Department of Human Services
Advocate for the Respondent:	Margaret Riley
Solicitors for the Respondent:	Welfare Rights Centre