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

This matter concerned an appeal by the Respondent, who was receiving a Carer Payment, against a decision to suspend her payments due to her absence from Australia exceeding the portability period. The Respondent had departed Australia on 5 May 2017, with a ticketed return date of 30 June 2017, and her Carer Payment was suspended from 16 June 2017 when her portability period expired. While overseas, the Respondent's uncle, who had been a significant figure in her life, suffered a fall and subsequently passed away. The Respondent remained in Italy until 31 July 2017, significantly past her original return date and the end of her portability period.

The primary legal issues before the Tribunal were whether the Respondent's uncle qualified as a "family member" under section 23(14) of the Social Security Act 1999 (the Act), whether the Respondent intended to return to Australia within the portability period at the time of her departure, and if she was unable to return due to an event contemplated by section 1218C(1) of the Act, which would allow for an extension of the portability period. The Tribunal was required to consider these questions de novo.

The Tribunal found that the Respondent's uncle did not meet the definition of a "family member" under section 23(14) of the Act. While acknowledging a close and loving relationship, the Tribunal determined that the evidence did not establish that the uncle had taken on a parental role or that the relationship was of a nature contemplated by the legislation, particularly in light of the Respondent's close relationship with her parents. Furthermore, the Tribunal found the Respondent's evidence regarding her intended return date to be unsatisfactory, noting inconsistencies with Centrelink records and her own statements about accepting reduced payments after eight weeks. This lack of clarity meant the Tribunal could not be satisfied that the Respondent intended to return within the portability period.

Consequently, the Tribunal concluded that the discretion to extend the portability period under section 1218C of the Act was not enlivened. The appeal was dismissed, and the decision to suspend the Respondent's Carer Payment was affirmed.