DAVID GREGSON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 213
[2013] AATA 213
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5759
Re
DAVID GREGSON
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr K S Levy, RFD, Senior Member Date 11 April 2013 Place Brisbane The decision under review is affirmed.
....................[Sgd]....................................................
Dr K S Levy, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Cancellation of pension – Australian residency requirements – Exceptions allowing for unlimited portability – No exceptions applicable – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 94, 1218AA, 1218AAA
Social Security (Administration) Act 1999 (Cth) s 80
REASONS FOR DECISION
Dr K S Levy, RFD, Senior Member
INTRODUCTION
The applicant, David Gregson, is an Australian Citizen. He had been approved to be paid disability support pension (“DSP”) from 2010. Following a marriage collapse and his own multiple medical conditions he has lived the majority of the past three years in the Philippines.
As a result of the applicant’s decision to live in the Philippines for most of the past three years, which Mr Gregson described to the Tribunal as being for economic reasons, it was determined on 30 May 2012 that he was not residing in Australia.[1] As a consequence, a decision was made to cancel his DSP. That decision was affirmed by an authorised review officer on 25 October 2012 and, subsequently, by the Social Security Appeals Tribunal on 12 December 2012. Mr Gregson now seeks a further review in this Tribunal. I note that Mr Gregson was approved for age pension effective from 2 January 2013.
[1] See Exhibit 3, annexure “C”.
ISSUE
The question for determination by this Tribunal is whether Mr Gregson was an “Australian resident” for the purposes of disability support pension as at the date of cancellation of his DSP on 30 May 2012.
CONSIDERATION
Mr Gregson presented his case succinctly. He conceded that he has probably not strictly complied with the Act as it is presently drafted in order to have portability of his pension to live overseas. He submitted, however, it seems unfair as he received no advice that the law was about to change and also that he has a job capacity assessor report which indicates he probably would be regarded as being “severely disabled” and, therefore, should qualify for the extended portability under s 1218AAA of the Social Security Act 1991 (Cth) (‘the Act”). That section was inserted into the Act and became effective from 1 July 2012; that is approximately two months after the effective date of the decision under review.
Ms Smith, for the Secretary, did not disagree that the applicant might be regarded as “severely disabled” with his medical conditions. However, she submitted that he does not satisfy that section in a technical legal sense as the provision was not in existence at the date of the decision under review; that is at 30 May 2012.
Mr Gregson does not dispute that it is difficult for him to be regarded as being a “resident” in terms of the statutory requirements set out in s 7(3) of the Act. This is as a result of the more stringent eligibility criteria for DSP under s 94(1)(ea) of the Act.
I have considered the evidence on the Tribunal record and Mr Gregson’s oral evidence as to whether he would be qualified for disability support pension since the definition was amended. I have taken account of the criteria that he must be not only an Australian citizen but also an “Australian resident”. The latter term has a number of statutory criteria in s 7(3) of the Act to guide that assessment and these include his family relationships, employment, assets and the frequency and duration of travel outside of Australia. The evidence clearly shows that prior to the decision under review Mr Gregson spent 134 weeks out of the previous 146 weeks in the Philippines. Therefore, he spent the vast majority of the previous almost three years outside of Australia. Most of the other criteria are equivocal about whether he might be regarded as being a resident of Australia or a resident of the Philippines, however the scales are clearly weighed in favour of his being a resident of the Philippines when one takes account of the duration of travel outside of Australia over the previous three years. I therefore find that the decision to find that he was not an Australian resident is correct based on the legal requirements for determination of his residency.
In response to the applicant’s claim of unfairness, Ms Smith referred to s 1218AA of the Act as being the only possible avenue of relief. At the time of the decision to cancel Mr Gregson’s DSP, s 1218AA of the Act provided for unlimited portability for DSP recipients in limited circumstances. I have examined the relevant provisions in s 1218AA of the Act. That requires a person to be terminally ill. Mr Gregson explained that his conditions and his mobility have deteriorated and he regards himself as likely to be in a wheelchair within five years. Unfortunate as his condition is, he does not have a diagnosis of being terminally ill. Consequently, s 1218AA is of no assistance to the present appeal.
Mr Gregson submits in the alternative that he has been completely honest with the Department and the strict application of the legislation in his case, where some flexibility was available two months later, is unfair. His submission is that he has a job capacity assessment report which would indicate that he probably should be regarded as having “a severe impairment” within the meaning of s 94(3B) of the Act. Ms Smith, for the Secretary, conceded that his condition might be of that order if it was assessed today. However, there are other considerations. Fundamentally, s 1218 AAA of the Act, which provides for unlimited portability for a person who is, inter alia, “severely disabled”, commenced operation on 1 July 2012. As Ms Smith submitted, it was not available at the date of the decision under review; that is at 30 May 2012. Consequently, the Tribunal has no jurisdiction to consider that submission.
Even if the timing impediment did not exist, I consider Mr Gregson could still not qualify under that section as the evidence available is inadequate. In particular, there would first have to be a “written determination” under s 1218AAA(1) that Mr Gregson has an unlimited period of portability because:
(a)He has a “severe impairment” (s 1218AAA(1)(b)). There is no evidence of such an assessment so this Tribunal cannot review that requirement.
(b)In addition to (a), the Secretary would also need to be satisfied that the applicant would have a “severe impairment” for the next five years (s 1218AAA(1)(c)). While it might be likely that his condition is of such severity that he may be able to persuade the Department to regard him as having a “severe impairment”, it is not possible on the present evidence to say whether or not the Secretary is satisfied of the prospective five year period. There was no evidence that a decision had been made in this regard and, therefore, this Tribunal does not have a decision to review.
(c)As Mr Gregson was out of Australia at the time that the decision was made to cancel his pension, even if the timing issue did not exist, he would had to have been precluded from returning to Australia because of having been involved in a serious accident and being hospitalised to the extent which would have prevented his return to Australia (s 1218AAA(2)). In addition, the Secretary would have to be satisfied that the person’s portability period had not ended at the time of any such accident and hospitalisation (s 1218AAA(3)). There is no evidence to satisfy these criteria.
Therefore, any submission under s 1218AAA of the Act would have to be based purely on conjecture. Mr Gregson’s argument therefore cannot succeed at the date of the decision under review or at the date of the hearing.
In all the circumstances as the law existed at 30 May 2012, Mr Gregson was not qualified for disability support pension. As a consequence, the Secretary was bound by the mandatory requirements of s 80 of the Social Security (Administration) Act 1999 (Cth) to cancel his disability support pension. Unfortunately, there is no latitude to consider any other circumstances.
DECISION
The decision under review must therefore be affirmed.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr KS Levy RFD ........................[Sgd]................................................
Associate
Dated 11 April 2013
Date of hearing 4 April 2013 Applicant In person Advocate for the Respondent Donna Smith, departmental advocate
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