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…