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

[2017] AATA 777

Darcey and Secretary, Department of Social Services (Social services second review) [2017] AATA 777 (29 May 2017)

Division:GENERAL DIVISION

File Number:           2016/5079

Re:Jessica Darcey

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:29 May 2017

Place:Brisbane

The Tribunal affirms the decision under review.

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

Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – portability – whether maximum portability period may be extended – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Member D K Grigg

29 May 2017

INTRODUCTION

1. Ms Darcey has been a recipient of the disability support pension (“DSP”) since 1997.

2. On 5 May 2015 Ms Darcey’s DSP was suspended by Centrelink on the grounds that she was overseas for more than 28 days within a 12 month period between 7 April 2015 and 6 May 2015.[1] Ms Darcey’s DSP was reinstated on 7 May 2015 when she returned to Australia.[2]

   [1]           Exhibit 1, T Documents, T5, page 50, Letter from Centrelink to Ms Darcey dated 5 May 2015; T12,

   page 79, Centrelink Records.

   [2]           Exhibit 1, T Documents, T6, page 52, Letter from Centrelink to Ms Darcey dated 5 May 2015; T12,

   page 79, Centrelink Records.

3. On 6 April 2016 Ms Darcey again travelled overseas and returned to Australia on 7 May 2016. On 6 April 2016 Centrelink suspended Ms Darcey’s DSP again because she had exceeded her maximum portability period of 28 days in a 12 month period pursuant to section 1217 of the Social Security Act 1991 (Cth) (“Act”).[3] Ms Darcey’s DSP was reinstated on 7 May 2016 when she returned to Australia.[4]

   [3]           Exhibit 1, T Documents, T7, page 55, Letter from Centrelink to Ms Darcey dated 6 April 2016; T12,

   page 79, Centrelink Records.

   [4]           Exhibit 1, T Documents, T8, page 57, Letter from Centrelink to Ms Darcey dated 7 May 2016; T12,

   page 79, Centrelink Records.

   Claim History

4. Ms Darcey requested a review of Centrelink’s decision on 6 April 2016 to suspend her DSP. Ms Darcey contended that because the rolling 12 months since her previous absence from Australia ended on 6 April 2016, that she should be able to be paid from 7 April 2016, the beginning of the next 12 month period.[5]

   [5]           Exhibit 1, T Documents, T9, pages 60-66, ARO Decision and ARO Notes dated 26 May 2016.

5. The Authorised Review Officer (ARO) affirmed the decision to suspend Ms Darcey’s DSP from 6 April 2016 to 6 May 2016.[6]

   [6]           Exhibit 1, T Documents, T9, pages 60-66, ARO Decision and ARO Notes dated 26 May 2016.

6. Ms Darcey then sought a further review.[7] The Social Services and Child Support Division (“SSCSD”) rejected Ms Darcey’s claim and affirmed the ARO’s decision on 15 August 2016.[8]

   [7]           Exhibit 1, T Documents, T11, page 69, Letter from Centrelink to Ms Darcey dated 1 July 2016.

   [8]           Exhibit 1, T Documents, T2, pages 4-8, SSCSD’s Decision and Reasons for Decision dated 15 August 2016.

7. On 20 September 2016 Ms Darcey lodged an application for review of the SSCSD’s decision by this Tribunal.[9]

   [9]           Exhibit 1, T Documents, T1, pages 1-3, Application for Second Review of Decision dated 20 September 2016.

   ISSUES FOR DETERMINATION

8. The issues for determination are whether or not:

   (a)the maximum portability period for Ms Darcey’s DSP was 28 days in a 12 month period; and, if yes

   (b)the maximum portability period may be extended; and

   (c)Centrelink has the power to suspend Ms Darcey’s DSP.

   MAXIMUM PORTABILITY PERIOD

9. Section 1217 of the Act sets out a person’s maximum portability period in which a person’s social security payment will be paid. If a person is absent overseas for longer than their maximum portability period, payment of their pension will be suspended.

10. If a person who is a recipient of the DSP is temporarily absent for reasons other than to seek eligible medical treatment, to attend to an acute family crisis or for a humanitarian purpose, the maximum portability period is 28 days in the last 12 months (see Table in section 1217).

11. There is no contention by Ms Darcey, nor is there any evidence, that she was temporarily absent from Australia to seek eligible medical treatment, to attend to an acute family crisis or for a humanitarian purpose, and, therefore, her maximum portability period is 28 days in the last 12 month period.

12. If a person exceeds their maximum portability period, their social security payments are not payable for the period of absence as occurs after the end of the person's portability period for the payment: section 1215 of the Act.

    WHEN DID MS DARCEY’S MAXIMUM PORTABILITY PERIOD END?

13. Ms Darcey temporarily left Australia on 7 April 2015. As her maximum portability period is 28 days, the portability period (during which her DSP would continue to be paid) expired on 5 May 2015. Ms Darcey was temporarily absent from Australia until 6 May 2015, which was beyond her maximum portability period.

14. The 12 month period commenced on 7 April 2015, the day she left Australia and ended on 6 April 2016. On 6 April 2016 Ms Darcey went overseas again. Because Ms Darcey had already been temporarily absent from Australia for more than her maximum portability period in the 12 months prior to 6 April 2016, Centrelink was correct in suspending her DSP until she returned on 7 May 2016.

    CAN THE MAXIMUM PORTABILITY PERIOD BE EXTENDED?

15. Section 1217 provides for different maximum portability periods in certain circumstances, such as needing to travel overseas to seek eligible medical treatment. There is no contention by Ms Darcey, nor is there any evidence, that she was temporarily absent from Australia to seek eligible medical treatment, to attend to an acute family crisis or for a humanitarian purpose.

16. Section 1218C(1) provides that the Secretary may extend the person's portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

    (a)a serious accident involving the person or a family member of the person;

    (b)a serious illness of the person or a family member of the person;

    (c)the hospitalisation of the person or a family member of the person;

    (d)the death of a family member of the person;

    (e)the person's involvement in custody proceedings in the country in which the person is located;

    (f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

    (g)robbery or serious crime committed against the person or a family member of the person;

    (h)a natural disaster in the country in which the person is located;

    (i)political or social unrest in the country in which the person is located;

    (j)industrial action in the country in which the person is located;

    (k)a war in the country in which the person is located.

17. There is no contention by Ms Darcey, nor is there any evidence, that she was temporarily absent from Australia for any of the reasons listed in section 1218C(1) and therefore the Applicant’s maximum portability period cannot be extended.

18. A maximum portability period may also be extended under section 1218AAA for an unlimited period if, among other things, Ms Darcey’s impairment is a severe impairment (see section 94(3B) of the Act). However, no portability assessment of whether or not Ms Darcey’s impairment was severe was made prior to her travelling overseas. There is simply no evidence that Ms Darcey’s impairment was severe such that her maximum portability period could be extended. Ms Darcey did not dispute this.

    POWER TO SUSPEND PAYMENT OF DSP

19. Section 80 of the Social Security (Administration) Act 1999 (Cth) provides that if a social security payment is being paid in circumstances when it should not have been, the Secretary is to determine whether the payment should be cancelled or suspended.

20. The Department correctly exercised its power to suspend Ms Darcey’s DSP payments in circumstances where she was not entitled to be paid.

    CONCLUSION

21. Ms Darcey does not dispute the dates of travel or that she was temporarily absent for more than 28 days, rather her contention is that the original decision to suspend her DSP payments was harsh because if she had travelled overseas on 7 April 2016, one day later, her payments would not have been suspended.

22. It may seem harsh to Ms Darcey, however the Act does not provide any discretion for the maximum portability period to be extended in those circumstances. In this case, the circumstances in which a maximum portability period may be extended are only those circumstances listed in sections 1218C(1) and 1218AAA(1). However, as accepted by Ms Darcey at the hearing, those circumstances do not apply to her. As a result, Ms Darcey’s appeal fails.

23. The decision under review is affirmed.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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

Associate

Dated: 29 May 2017

Date of hearing:	24 May 2017
Applicant:	In person
Advocate for the Respondent:	Ms Michelle Brazier
Solicitors for the Respondent:	Department of Human Services