DACIC and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 247

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 247

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3471

GENERAL ADMINISTRATIVE DIVISION		)
Re		STANOJE DACIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date 9 April 2010

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd]...........................

Dr I Alexander
  Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – portability – where Australia does not have a social security agreement with the country the applicant intends to permanently reside in – qualification for unlimited portability period – meaning of terminally ill – decision under review affirmed

Social Security Act 1991 s 1217, 1218AA

Re Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983

Re Toseska and Secretary, Department of Family and Community Services [2005] AATA 386

REASONS FOR DECISION

9 April 2010 Dr I Alexander, Member

1.      In this application Mr Dacic seeks review of the Social Security Appeals Tribunal’s decision of 23 June 2009 which affirmed Centrelink’s decision of 29 April 2009 that his disability support pension (“DSP”) can only be paid for 13 weeks should he leave Australia to reside permanently in Serbia.

2.      Mr Dacic is a 58 year old man of Serbian descent who was granted DSP in January 2008. He suffers from a progressive degenerative eye disorder which has left him legally blind and several other chronic conditions.

3.      At the hearing Mr Dacic explained that he lives alone in subsidised housing with no family support and relies on friends and intermittent domestic assistance. He described the various difficulties he has with daily living and vigorously expressed his distress as a result of his current circumstances.

4.      Mr Dacic submits that his only reasonable option is to return to Serbia where he can be supported by his mother and other family members and accordingly seeks an unlimited portability period for his DSP.

ISSUES

5.      The portability provisions of the Social Security Act 1991 (“the Act”) apply unless a person is travelling to a country with which Australia has a scheduled international social security agreement. No such agreement exists with Serbia.

6. Section 1217 of the Act provides that DSP is portable for only thirteen weeks unless a person is able to satisfy all the criteria in section 1218AA of the Act. There is no other relevant discretion afforded by the Act.

7. Section 1218AA states inter alia:

1218AA  Extended portability period for disability support pension

(1)The Secretary may determine 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:

(a)       the person is severely disabled (see subsection 23(4B)); and

(b)       the person is receiving disability support pension; and

(c)       the person is terminally ill; and

(d)the person’s absence from Australia is or will be permanent; and

(e)       the purpose of the person’s absence is:

(i)to be with or near a family member of the person (see subsection 23(14)); or

(ii)       to return to the person’s country of origin.

…

8.      There is no dispute that Mr Dacic satisfies all the criteria except (1)(c), in that he is not “terminally ill”.

9.      Therefore the only issue in dispute is whether Mr Dacic can be considered to be “terminally ill”.

CONSIDERATION

10. The words “terminally ill” are not defined in the Act.

11.     The respondent referred the Tribunal to the Guide to Social Security Law (“the Guide”) and to two earlier decisions of the Tribunal.

12.     The Guide at [7.1.2.10] refers to recipients of DSP who are “in the terminal phase of a terminal illness – where life expectancy is less than 2 years”.

13.     In Re Toseska andSecretary, Department of Family and Community Services [2005] AATA 386 the Tribunal adopted the Shorter Oxford English Dictionary’s definition for “terminally ill”, meaning “in the last stages of a fatal disease.”

14.     This meaning of “terminally ill” was approved by the Tribunal in Re Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983.

15.     Mr Dacic submitted that the Tribunal should take a more expansive view of the meaning of “terminal” to include his unique situation where he suffers from a severely disabling condition that will get worse over time and lead to greater disability.

16.     While I am sympathetic to Mr Dacic’s very difficult situation I am not persuaded by his submission and agree that the words “terminally ill” are correctly defined as “in the last stages of a fatal disease”.

17.     There is no dispute that Mr Dacic suffers from a serious disease that has resulted in severe disability, but there is no evidence before the Tribunal that this disease is fatal or that he suffers from any other medical condition that is fatal. Therefore, I conclude that he cannot be considered to be terminally ill.

18. Accordingly, I am satisfied that Mr Dacic does not satisfy the requirements of section 1218AA of the Act and can only be paid DSP for 13 weeks should he return to Serbia permanently.

DECISION

19. For the reasons set out above Mr Dacic does not satisfy the requirements of section 1218AA of the Act.

20.     The reviewable decision is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander

Signed:         ..............[sgd]..................................................................
  Associate

Date of Hearing  31 March 2010
Date of Decision  9 April 2010
Appearance for the Applicant   Self-represented with the assistance of
  Mr N Jovanovic
Solicitor for the Respondent     Ms R Harlock, Centrelink Advocacy Branch