Dimitrijevic; Secretary, Department of Employment and Workplace Relations
[2006] AATA 1064
•11 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1064
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/428
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
LJUBEN DIMITRIJEVIC
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate11 December 2006
PlacePerth
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 16 November 2005 and, in substitution therefor, decides that, pursuant to s 1217(1) of the Social Security Act 1991 (Cth), the “maximum portability period” for payments of Mr Dimitrijevic’s disability support pension is 13 weeks.
.....[Sgd S D Hotop]............
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension – portability of payments – maximum portability period – in 2003 respondent determined by Centrelink not to be severely disabled – respondent’s maximum portability period was 12 months – respondent departed Australia on 29 February 2004 and returned to Australia on 25 February 2005 – respondent not entitled to unlimited portability of disability support pension – respondent’s maximum portability period is 13 weeks – decision under review set aside
Social Security Act 1991 (Cth), s 23(4B), s 1217(1), s 1218AA(1), and Sched 1A, cls 128 and 135
Social Security (Administration) Act 1999 (Cth), s 152
REASONS FOR DECISION
11 December 2006 Deputy President S D Hotop
Dr D Weerasooriya, Member
Introduction
1. Ljuben Dimitrijevic, who was born in Yugoslavia in 1948, emigrated to Australia in 1970. He worked in Australia until 1992 when he suffered a back injury. He subsequently claimed disability support pension (“DSP”) and he was granted DSP on 14 November 1996.
2. Since 1996 Mr Dimitrijevic has visited Yugoslavia/ Serbia for extended periods after which he returned to Australia. He now wishes to depart Australia and return to Serbia permanently and he wishes to continue to receive DSP indefinitely while he is absent from Australia.
3. On 16 September 2005, however, an Authorised Review Officer (“ARO”) within Centrelink decided that, under the social security law, Mr Dimitrijevic was not entitled to receive DSP indefinitely while absent from Australia. The ARO decided that the period for which Mr Dimitrijevic was entitled to receive DSP while absent from Australia was limited to 12 months in 2004 and was limited to 13 weeks thereafter.
4. The ARO’s decision was set aside by the Social Security Appeals Tribunal (“SSAT”) on 16 November 2005. The SSAT decided that, under the social security law, Mr Dimitrijevic is entitled to “unlimited portability of his DSP” – that is, Mr Dimitrijevic is entitled to receive DSP indefinitely while he is absent from Australia.
5. The Secretary to the Department of Employment and Workplace Relations (“the Secretary”) has applied to this Tribunal for review of the SSAT’s decision.
The Issue and the Tribunal’s Determination
6. The ultimate issue for the Tribunal’s determination under the social security law is the “maximum portability period” for payments of Mr Dimitrijevic’s DSP.
7. For the reasons which follow, the Tribunal has determined that the “maximum portability period” for payments of Mr Dimitrijevic’s DSP is 13 weeks.
The Factual Background
8. On the basis of the “T Documents” (T1-T39, pp 1-235) lodged by the Secretary in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and the “Supplementary T Documents” (T40-T52, pp 236-306) tendered in evidence by the Secretary (Exhibit A1), the Tribunal finds the background facts to be as follows.
9. Mr Dimitrijevic claimed DSP on 12 November 1996. In the claim form and supporting documentation he indicated that:
· he was born in Yugoslavia on 20 March 1948 and he first came to Australia to live permanently in November 1970;
· he was an Australian citizen and intended to stay in Australia permanently;
· since first arriving in Australia he had been absent from Australia for the following periods:
-27 July 1994 – 27 February 1995;
-2 May 1995 – 11 April 1996;
-9 July 1996 – 1 November 1996;
and that the reason for each of those absences was to visit relatives in Yugoslavia/ Serbia. (T40, T41)
10. Since 1 November 1996 Mr Dimitrijevic has been absent from Australia for the following periods:
· 3 April 2000 – 19 December 2000;
· 15 February 2001 – 14 August 2001;
· 8 November 2001 – 7 May 2002;
· 17 June 2002 – 3 December 2002;
· 20 February 2003 – 23 December 2003;
· 29 February 2004 – 25 February 2005. (T37)
11. On 31 January 2001 Dr D Heggart, Health Services Australia Ltd, completed a medical assessment report in relation to Mr Dimitrijevic. She found that Mr Dimitrijevic was, by reason of chronic low back pain, “unfit for all full-time work for the next 5 years” but that he was presently fit for part-time (at least 8 hours per week) sedentary/ light work with restrictions. (T6, pp 23-37)
12. On 6 February 2001 a Centrelink officer determined that Mr Dimitrijevic was “not severely disabled for portability purposes” on the basis that he was “able to work at least 8 hours per week”. (T6, p 38)
13. On 13 January 2003 Mr Dimitrijevic lodged with Centrelink a completed “Medical Review – Disability Support Pension” form dated 7 January 2003 which included a report by his treating general practitioner, Dr C Denz, in which the following opinions were expressed:
· Mr Dimitrijevic has a medical condition which has a significant impact on his ability to function;
· since 26 October 1992 Mr Dimitrijevic has suffered from a lumbar spine disc prolapse as a result of which he suffers back pain and is unable to remain in a static position, such as sitting or standing, for more than 20 minutes, and the effect of this condition on his ability to function was expected to remain unchanged for the next 2 years and to persist for more than 2 years;
· Mr Dimitrijevic also suffers from diabetes mellitus, which was diagnosed on 24 December 2002, and the effect of this condition on his ability to function was expected to deteriorate within the next 2 years and to persist for more than 2 years;
· Mr Dimitrijevic does not have a terminal condition with a prognosis of less than 24 months. (T9)
14. On 15 January 2003 a Disability Officer within Centrelink conducted an assessment (based solely on the Centrelink file) of Mr Dimitrijevic’s current work capacity for the purpose of determining the portability of his DSP. The Disability Officer’s assessment was that Mr Dimitrijevic had the capacity to undertake “light low-skilled work” (such as parking attendant, usher, light courier work, office cleaner) for up to 14 hours per week, and she accordingly concluded that Mr Dimitrijevic was “not... severely disabled for portability purposes”. (T12) Mr Dimitrijevic was notified of this decision by letter dated 15 January 2003. (T13)
15. A Centrelink file document records that on 28 January 2003 Mr Dimitrijevic telephoned Centrelink and advised that he was appealing against the abovementioned decision, and that he was then informed by a Centrelink officer that an appointment had been made for him to undergo a work capacity assessment on 7 February 2003. (T15)
16. A “Work Capacity/ Participation Assessment Report” form completed by Ms M Cantwell, Occupational Therapist, on 7 February 2003 contains the following information:
· a “face-to-face” assessment of Mr Dimitrijevic’s current work capacity was conducted by Ms Cantwell on 7 February 2003;
· Ms Cantwell’s assessment was that Mr Dimitrijevic presently had the capacity to do any work, without any intervention programs, for 8-14 hours per week, but that, from 6-24 months thereafter, with vocational rehabilitation assistance and “disability specific assistance”, he would have the capacity to do any work for 15-29 hours per week;
· Ms Cantwell described the impact of Mr Dimitrijevic’s low back pain on his capacity to work as follows:
“Moderate symptoms that distress Mr Dimitrijevic but does not affect his ability to perform everyday activities, but may impact on ability to perform work related tasks.”;
· Ms Cantwell stated the reasons supporting her assessment as follows:
“Mr Dimitrijevic reports chronic lower back pain which limits his ability to sit/stand/ walk longer than 15-30 minutes. Activities such as carrying objects > 1-2 kg aggravate his symptoms. He is independent in all self care tasks and manages to walk to the shop to buy groceries. He catches the bus daily into town to walk around the shops or meet with friends. He reports the level of pain disrupts his sleep. His only form of pain control is analgesia.
Mr Dimitrijevic was only recently diagnosed with diabetes which should result in minimal/no symptoms once optimally treated.”;
· in response to the question:
“Does your opinion of the customer’s ‘ability to function’ differ from the treating doctor?”
Ms Cantwell stated: “No”;
· Ms Cantwell provided the following “general summary” of Mr Dimitrijevic’s circumstances:
“Mr Dimitrijevic has not worked since sustaining a lower back injury in 1992. He was unsuccessful in attempts to return to work. He has done no physical rehabilitation since this time. He has made no other attempts to gain work. Mr Dimitrijevic appears to have chronic lower back pain and may benefit from involvement in a pain management program to learn ways to manage pain and shift his focus from his pain.
Mr Dimitrijevic may benefit from vocational rehabilitation, however does not appear motivated to consider investigating work options.”;
· Ms Cantwell noted that Mr Dimitrijevic planned to return to Yugoslavia (sic) later in February 2003 to visit his 93-year-old mother and would like to stay there 1-2 years. (T16)
17. On 17 March 2003 an ARO within Centrelink affirmed the abovementioned decision of 15 January 2003 that Mr Dimitrijevic was not “severely disabled” for the purposes of the portability of his DSP payments and determined that, in the circumstances of his case, payment of his DSP was limited to a period of 12 months after leaving Australia. Mr Dimitrijevic was notified of this decision by letter dated 17 March 2003. (T22)
18. A Centrelink file document records that on 28 February 2005 Mr Dimitrijevic was issued with a “SA12R” (“Medical Service Update – Disability Support Pension”) form to complete as he “wishes depart overseas perm as of May 2005”. (T49, p 282)
19. On 14 March 2005 Mr Dimitrijevic lodged with Centrelink a completed “Medical Service Update – Disability Support Pension” form dated 11 March 2005 which included a report by his treating general practitioner, Dr C Denz, in which the following opinions were expressed:
· Mr Dimitrijevic has a medical condition which has a significant impact on his ability to function;
· Mr Dimitrijevic suffered congestive cardiac failure in October 2004 resulting in severe shortness of breath and chest pains and rendering him unable to work, and the effect of this condition on his ability to function was expected to deteriorate within the next 2 years and to persist for more than 2 years;
· Mr Dimitrijevic continues to suffer severe back pain, in respect of which no significant improvement is expected, and uncontrolled diabetes whose effect on his ability to function is expected to deteriorate within the next 2 years and to persist for more than 2 years;
· Mr Dimitrijevic does not have a terminal condition with a prognosis of less than 24 months;
· Mr Dimitrijevic is “very unwell”. (T25)
20. A Centrelink file document dated 29 March 2005 records that it had been assessed that Mr Dimitrijevic would be entitled to only 13 weeks portability of his DSP if he were to leave Australia. (T49, p 281)
21. Following further communications between Mr Dimitrijevic and Centrelink regarding his intention to leave Australia and the portability of his DSP payments, a Centrelink officer wrote to him on 14 April 2005 as follows:
“I am writing about your Australian Disability Support Pension. Thank you for telling us that you intend to travel to Serbia on 1/5/2005.
When you leave Australia permanently, we need to determine your pension entitlement. Please have the enclosed ‘Certificate of Medical Condition’ form completed by your treating doctor.
Please follow the instructions on this form and return it to our office in the enclosed reply paid envelope at least 14 days before you depart...” (T49, p 280)
22. On 19 April 2005 Mr Dimitrijevic lodged with Centrelink a “Certificate of Medical Condition” form completed by Dr C Denz and dated 19 April 2005. In response to the question:
“Does the patient have a terminal condition with a prognosis of less than 24 months?”
Dr Denz stated: “No”, but he added:
“Note: Please contact me to discuss this patient”. (T28)
23. A Centrelink file document dated 20 April 2005 records:
“[Certificate of Medical Condition form] returned from doctor: customer NOT terminally ill... portable for 13 weeks only.” (T29)
24. Centrelink file documents record that on 27 April 2005 Mr Dimitrijevic contacted Centrelink to inquire whether Dr Denz had been contacted as requested (see paragraph 22 above), and that on 28 April 2005 a Centrelink officer contacted Dr Denz and advised him that the relevant form is to be completed as set out and that no further discussion would take place. (T49, pp 277-278)
25. Centrelink file documents record that:
· on 5 May 2005 Mr Dimitrijevic’s authorised nominee, Mr D Miljanovic, contacted Centrelink to inquire why Mr Dimitrijevic’s DSP portability period was only 13 weeks and was informed by a Centrelink officer that a decision to that effect had been made, and he was given a “Review of Decision” form; (T31, p 120)
· on 6 May 2005 Mr Dimitrijevic lodged with Centrelink a completed “Review of Decision” form;
· on 25 August 2005 Mr Dimitrijevic contacted Centrelink regarding the progress of his appeal which had been lodged over 3 months ago; (T49, p 274)
· on 31 August 2005 Mr Dimitrijevic again contacted Centrelink regarding his appeal, stating that he wanted payment of his DSP to continue while he was overseas and that he did not believe that he “can only be paid for 3 months”; (T49, p 273)
· on 31 August 2005 Mr Dimitrijevic requested review by an ARO because he was not satisfied with the previous decision and he “wants to be paid while overseas more than 3 months”; (T49, p 272)
· on 31 August 2005 the “paperwork” was forwarded to an ARO. (T49, p 272)
26. On 16 September 2005 an ARO wrote to Mr Dimitrijevic as follows:
“I am an Authorised Review Officer who has actioned your request to have the decision about your Disability Support Pension (DSP) reviewed. I’ve had no previous involvement in your case. On the phone I informed you that prior to proceeding with this review of decision I would arrange for another medical assessment of your condition. I have changed my mind on this matter because it is clear that your intent is that you should be allowed to return to Serbia indefinitely and have your payments of DSP continue.
Even were I to find that you are, and were, severely disabled that is no longer sufficient for your DSP payments to be paid for an indefinite period outside of Australia. For that reason I have decided to proceed with the review on the information currently available so that you can have the broader issues reviewed by the Social Security Appeals Tribunal (SSAT) should you wish to do so. I have not revisited the decision of an Authorised Review Officer regarding the decision in 2003 to only pay you for a 12 month period outside of Australia. That decision can also be appealed to the SSAT should you wish to do so.
After carefully looking at the matters presented in your case, as well as relevant parts of Social Security Law and policy guidelines, I have decided that the decision to allow a portability period of 12 months for your DSP payments in 2004 and not longer is correct. For the sake of clarity I have also indicated that any future decisions regarding payment of DSP whilst you are out of Australia (assuming you remain qualified for DSP and that circumstances do not change) will limit you to a 13 week period. Payment of DSP for an indefinite period is now confined to where the person is terminally ill.
This means your request to have the original decision changed has been unsuccessful.
...” (T33, p 124)
27. On 6 October 2005 Mr Dimitrijevic lodged with the SSAT an application for review of the ARO’s decision of 16 September 2005. (T39)
28. On 16 November 2005 the SSAT set aside the ARO’s decision of 16 September 2005 and decided that Mr Dimitrijevic is entitled to “unlimited portability of his DSP commencing from the beginning of his absence [from Australia] on 20 February 2003”. (T2)
The Evidence
29. The evidence before the Tribunal comprised the T Documents, the Supplementary T documents (Exhibit A1), and the oral evidence of Mr Dimitrijevic, Mr D Miljanovic and Dr C Denz.
The evidence of Mr Dimitrijevic
30. Mr Dimitrijevic’s oral evidence may be summarised as follows:
· since injuring his back in 1992 he has suffered chronic back pain;
· he has not driven a car since his injury in 1992;
· by reason of his back condition, he cannot sit for longer than 30 minutes, he cannot stand for long periods, and, when walking, he needs to stop every 5-10 minutes to rest;
· he also has a problem with pain in his legs;
· in May/June 2003, while in Serbia, he underwent surgery for the partial amputation of 2 toes on his right foot;
· he has no relatives in Australia;
· his mother (now aged 97 years), brother and sister (and their families) live in Serbia;
· he has assets in Australia comprising a home unit, shares in Telstra, and a bank account with a credit balance of approximately $4,000;
· when he is in Australia he lives in his home unit, and when he is absent from Australia that unit is occupied by Mr Miljanovic;
· he has no assets in Serbia, apart from a bank account (with a small credit balance) into which payments of his DSP are made when he is in Serbia;
· when he is in Serbia he lives with his mother in her house and he occasionally stays in hotels for short periods;
· he returned to Serbia in February 2003 because he could not cope on his own in Australia, and his relatives in Serbia would cook and clean for him and generally look after him; he also wanted to be with his mother at that time because she was very ill and he did not know whether she would survive or not;
· he returned to Australia in December 2003 but, had he been granted unlimited portability of his DSP, he would have sold his home unit in Australia and remained in Serbia;
· since the year 2000 he has spent much more time in Serbia than in Australia because it is his country and it is easier for him to communicate with doctors and others;
· since the year 2000 he has returned to Australia from Serbia from time to time in order to preserve his DSP payments which he needs in order to survive;
· since returning to Australia on 25 February 2005 he has remained in Australia, except for a visit to Serbia from 6 April 2006 to 5 July 2006 because his mother was “gravely ill”;
· as regards a choice between living in Australia and living in Serbia, because of his illness and because he has no relatives to help him in Australia, he finds it “extremely difficult” to live in Australia and, for that reason, he would choose to live in Serbia.
The evidence of Dr C Denz
31. Dr Denz said that he has been practising as a general practitioner for almost 20 years, and that Mr Dimitrijevic has been his patient since 4 January 1993. He said that when he first saw Mr Dimitrijevic on 4 January 1993 he had “quite severe disabling back pain” and “acute antalgia” and was unable to stand up straight.
32. Dr Denz said that Mr Dimitrijevic participated in a return-to-work rehabilitation program in 1993 but that he was unable to complete that program. He confirmed that he had prepared a report, dated 2 November 1993, regarding Mr Dimitrijevic’s participation in that program. That report states as follows:
“…
With the assistance of Western Rehabilitation he started a return to work program in September 1993. This involves attending a service station on a part-time basis. This started as four hours per day, five days per week on light duties.
When seen on the 24th September 1993, he reported having attended a full week of work at the petrol station, this being twenty hours.
His ability to continue this return to work program deteriorated quickly after its initiation and when seen on the 1st October 1993, he reported only attending his return to work program for four hours out of the programmed twenty. His pain relieving medication was reviewed to increase his times for his work programs.
He was last seen by me at this surgery on the 11th October 1993. On that day he reported ceasing work prematurely at 10.30am after two and a half hours work. He continues to complain of lower back pain, more to the right than the left with the radiation down the posterior aspect of the right leg. Specific tasks that aggravate his ability to continue work include mopping and sweeping.
In conclusion, I am disappointed by the failure of the rehabilitation program in its attempt to provide light duties for Mr Dimitrijevic. Although the duties seem appropriate, he is unable to attend consistently.
Mr Dimitrijevic continues to suffer with a reported lower back pain radiating into the right leg. This is consistent with his lumbar disc prolapse at L4/5 and consistent with his previous neurological examination indicating a loss of sensation over the distribution of the L4/5 nerve root on the right.
It is clear from the results of the last two months work trial, that Mr Dimitrijevic is not able to complete the return to work program at a four hour per day basis. He has (sic) only able to achieve four to five hours per week (maximum) at present. This indicates that attempted vocational re-training in this regards may be unsuccessful and consideration should be given to further investigation or retirement on the grounds of invalidity on this basis.
I am not optimistic that surgery will result in any significant improvement in Mr Dimitrijevic’s present work capacity or symptoms. In view of this, I have no choice but to recommend settlement on the grounds of permanent disability with loss of work capacity.
...” (T36, pp 184-185)
33. Dr Denz said that when he saw Mr Dimitrijevic in January 2003 he had, in addition to his ongoing back condition, “acute onset diabetes”. He said that Mr Dimitrijevic’s diabetes was “quite difficult” to control when it was first diagnosed in December 2002 and that continued to be the case until recently. Asked how much work or training/ educational activities Mr Dimitrijevic would have been able to do at that time, Dr Denz responded:
“In 2003 when he was acutely – certainly in the first half of the year probably nothing because we couldn’t get his diabetes under control and really he wouldn’t be up to much, in fact his vision would have been pretty badly affected with those sugar levels early on. Probably most of that year he would have really struggled. Even December 2003 I had his glucose level at 17.7, which is pretty frustrating.” (Transcript, p 116)
He added that, for most of that year, Mr Dimitrijevic “would have really struggled to have done anything useful”, especially because, in addition to diabetes, he had back problems. He concluded:
“... So my view is that [Mr Dimitrijevic] really hasn’t been – had the physical capacity to do anything that I think he could get paid for in a productive way since his back injury occurred and, unfortunately, the diabetes has just increased the difficulties in terms of the work environment.” (Transcript, p 121)
Dr Denz confirmed that it is his opinion that Mr Dimitrijevic does not have a terminal condition with a prognosis of less than 24 months.
Additional evidence
34. Mr D Miljanovic, a friend of Mr Dimitrijevic and his authorised nominee (since February 2003) for the purpose of communicating with Centrelink about his DSP, gave oral evidence. Mr Miljanovic also represented Mr Dimitrijevic in the present proceedings. It is unnecessary, however, to refer to the details of Mr Miljanovic’s evidence in these reasons.
The Relevant Legislation
The Social Security Act 1991 (Cth)
35. The relevant provisions of the Social Security Act 1991 (Cth) (“the Act”) relating to overseas “portability” of DSP payments, as in force at particular material times, were as follows.
36. As at 20 February 2003 (when Mr Dimitrijevic departed Australia), clause 128 of Schedule 1A to the Act contained the following relevant “savings” provision:
“128 Despite the amendments of sections 1213A, 1215, 1216, 1220A, 1220B and 1221 of this Act made by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, if:
(a) a person was absent from Australia immediately before 20 September 2000; and
(b) at a time (the post‑start time) after 20 September 2000, the person had not returned to Australia for a continuous period of 26 weeks or more since 20 September 2000;
those provisions continue to apply to the person at the post‑start time as if those amendments had not been made.”
Immediately before 20 September 2000 s 1213A of the Act relevantly provided:
“1213A(1) Subject to subsections (2) and (3), a person’s right to continue to be paid disability support pension is not affected by the person’s leaving Australia.
1213A(2) If:
(a)a person is receiving a disability support pension granted on or after 12 November 1991; and
(b)the person leaves Australia on or after that day; and
(c)the Secretary decides that the person is not severely disabled when leaving; and
(d)the person continues to be absent from Australia for a period of 12 months;
the person ceases to be qualified for disability support pension on the day after the 12 month period ends.
1213A(3) If:
(a)a person is receiving a disability support pension granted on or after 12 November 1991; and
(b)the person leaves Australia on or after that day; and
(c)the person is severely disabled when leaving; and
(d)the Secretary decides that the person has ceased to be severely disabled; and
(e)the person continues to be absent from Australia for a period of 12 months after the decision;
the person ceases to be qualified for disability support pension on the day after the 12 month period ends.”
Pursuant to s 1217(1) of the Act, the “maximum portability period” for payments of DSP, in the case of “severely disabled” persons, was an “unlimited period”.
37. As at 1 July 2004 (when Mr Dimitrijevic was absent from Australia), following amendments to the Act, the “maximum portability period” for payments of DSP, in the case of “all persons”, was reduced to 13 weeks: see s 1217(1) and item 3 in the table at the end of s 1217. By way of exception, however, s 1218AA(1) of the Act provided:
“1218AA(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.”
Clause 128 of Schedule 1A to the Act was amended by adding subcl (2) as follows:
“128(2) However, the following provisions (as in force as if the amendments described in subclause (1) had not been made) do not continue to apply to the person at or after the first time the person is in Australia after the commencement of Schedule 6 to the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003:
(a) section 1213A;
(b) section 1215;
(c) section 1216;
(d) section 1220B, so far as it relates to a pension other than age pension or bereavement allowance.
Note:If those provisions (as in force as if the amendments described in subclause (1) had not been made) do not continue to apply to the person at a particular time, the person is covered at that time by this Act as in force at that time.”
Clause 135 was inserted into Schedule 1A as follows:
“135(1) The Secretary may determine that a person's maximum portability period for disability support pension is an unlimited period if:
(a) at the commencement of this clause, the person is absent from Australia and receiving disability support pension; and
(b) under this Act as in force immediately before the commencement, that absence could not affect the person's right to continue to be paid the disability support pension throughout the period of that absence; and
(c) after the commencement, the person enters Australia but does not become an Australian resident again.
Note: The condition in paragraph (1)(b) may be met:
(a) because the person was severely disabled (see subsection 1214(1) and item 2 of the table in subsection 1217(5) as those subsections were in force just before the commencement); or
(b)because clause 128 (as in force just before the commencement) applied to the person section 1213A as in force before its repeal by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000.
135(2) The determination has effect for the purposes of Part 4.2 of this Act as it applies in relation to an absence after the person's entry, despite the repeal and substitution of items 2 and 3 of the table in section 1217 of this Act by the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003.”
38. At all material times s 23(4B) of the Act has provided:
“23(4B) For the purposes of this Act, a person is severely disabled if:
(a)a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i)to work for at least the next 2 years; and
(ii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b)the person is permanently blind.”
The Social Security (Administration) Act 1999 (Cth)
39. Section 152 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides:
“152(1) Subject to subsections (2) and (3), a decision of the SSAT comes into operation immediately on the giving of the decision.
152(2) The SSAT may specify in a decision that the decision is not to come into operation until a later day specified in the decision and, if it does so, the decision comes into operation on that later day.
152(3) Subject to subsections (4) and (5), if the SSAT:
(a) varies a decision under review; or
(b) sets aside a decision under review and substitutes a new decision;
the decision as varied or the new decision (as the case may be) has effect, or is to be taken to have had effect, on and from the day on which the decision under review has or had effect.
152(4) If:
(a) a person is given written notice of a decision under the social security law; and
(b) the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c) the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d) the effect of the decision of the SSAT is:
(i) to grant the person's claim for a social security payment or a concession card; or
(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person's social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
152(5) The SSAT may declare:
(a) that subsection (3) does not apply to a decision by the SSAT on a review; and
(b) that subsections (1) and (2) apply instead.
...”
Analysis and Findings
What is the “maximum portability period” for payments of Mr Dimitrijevic’s DSP?
40. The Secretary, relying on s 152(4) of the Administration Act, submitted that the applicable law comprised the relevant provisions of the Act as in force on 6 October 2005 because:
·on 17 March 2003 an ARO made a decision that Mr Dimitrijevic was not “severely disabled” and that, therefore, payment of his DSP was limited to a period of 12 months after leaving Australia, and he was given written notice of that decision by letter dated 17 March 2003 (see paragraph 17 above);
·Mr Dimitrijevic did not apply to the SSAT for review of the ARO’s decision of 17 March 2003 until 6 October 2005 – that is, a date more than 13 weeks after notice of that decision was given to him.
The Secretary submitted that, pursuant to the relevant provisions of the Act as in force on 6 October 2005, the maximum portability period for payments of his DSP was 13 weeks, unless all of the circumstances specified in s 1218AA(1) of the Act existed.
41. It is clear from the evidence (comprising Centrelink’s documentary records contained in the T Documents) before the Tribunal that, on 6 October 2005, Mr Dimitrijevic applied to the SSAT for review of the decision of an ARO made on 16 September 2005 – not the decision of an ARO made on 17 March 2003. The Tribunal acknowledges that the effect of each of those ARO decisions was to deny Mr Dimitrijevic unlimited portability of his DSP payments, but it notes that the decision of 16 September 2005 focussed solely on Mr Dimitrijevic’s circumstances from 2004, not on his circumstances prior to 2004. Furthermore, the ARO’s decision of 16 September 2005 was preceded by a new decision made by a Centrelink officer, on or about 20 April 2005, that the portability period of Mr Dimitrijevic’s DSP payments was limited to 13 weeks (see paragraph 23 above), and it is clear from Centrelink’s records that Mr Dimitrijevic’s subsequent requests for a review related to that new decision (see paragraph 25 above).
42. Accordingly, the Tribunal is satisfied that Mr Dimitrijevic’s application to the SSAT on 6 October 2005 related solely to the decision of an ARO which was made on 16 September 2005 which, in turn, related to a decision of a Centrelink officer which was made on or about 20 April 2005. In those circumstances, s 152(4) of the Administration Act is inapplicable.
43. Clause 135 of Schedule 1A to the Act, however, is applicable in this case. Pursuant to that “savings” provision, the Tribunal may determine that the “maximum portability period” for Mr Dimitrijevic’s DSP payments is an unlimited period if the conditions specified in paras (a), (b), and (c) of cl 135(1) have been met.
44. It is common ground, and the Tribunal finds, that the condition specified in para (a) of cl 135(1) has been met because at the commencement of that clause (namely, 1 July 2004) Mr Dimitrijevic was absent from Australia and was receiving DSP payments.
45. As regards the condition specified in para (b) of cl 135(1), however, in the Tribunal’s opinion that condition has not been met because in the period of approximately 3 years immediately prior to 1 July 2004 it had been determined by Centrelink officers (in 2001 and 2003) that Mr Dimitrijevic was not “severely disabled” (as defined in s 23(4B) of the Act) for the purposes of the portability of his DSP payments, and the latest of those determinations – namely, the determination of an ARO on 17 March 2003 (see paragraph 17 above) – was in force as at 1 July 2004. That condition cannot be met by an ex post facto determination by the SSAT (as occurred in this case), or by this Tribunal, that Mr Dimitrijevic was “severely disabled” prior to, and as at, 1 July 2004. Accordingly, as the relevant provisions of the Act stood as at 1 July 2004, Mr Dimitrijevic was not entitled to portability of his DSP payments for an unlimited period, and, that being the case, the Tribunal finds that the condition specified in para (b) of cl 135(1) has not been met.
46. Because the Tribunal has found that the condition specified in para (b) of cl 135(1) has not been met, it is unnecessary for it to determine whether the condition specified in para (c) of cl 135(1) has been met in this case.
47. Pursuant to cl 128(2) of Schedule 1A to the Act, Mr Dimitrijevic has, from the time of his return to Australia on 25 February 2005, been subject to the relevant provisions of the Act as in force at that time, and not to (the former) s 1213A which, pursuant to cl 128(1), continued to apply to him up until that date.
48. Section 1218AA(1) of the Act (as in force from 1 July 2004) provides that, if all of the circumstances specified in paras (a)-(e) of that subsection exist, it may be determined that a person’s “maximum portability period” for payments of DSP is an unlimited period.
49. According to the medical evidence before the Tribunal – in particular, the reports and oral evidence of Mr Dimitrijevic’s treating general practitioner, Dr C Denz - Mr Dimitrijevic is not terminally ill, and the Tribunal so finds. The Tribunal finds, therefore, that the circumstance specified in para (c) of s 1218AA(1) of the Act does not exist in this case.
50. Because the Tribunal has found that the circumstance specified in para (c) of s 1218AA(1) of the Act does not exist, it is unnecessary for it to determine whether any of the other circumstances specified in that subsection exists in this case.
Finding
51. It follows from the abovementioned analysis and findings that, pursuant to s 1217(1) of the Act (as in force from 1 July 2004), the “maximum portability period” for payments of Mr Dimitrijevic’s DSP is 13 weeks, and the Tribunal so finds.
Decision
52. For the above reasons the Tribunal sets aside the decision of the SSAT dated 16 November 2005 and, in substitution therefor, decides that, pursuant to s 1217(1) of the Act, the “maximum portability period” for payments of Mr Dimitrijevic’s DSP is 13 weeks.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: ...[Sgd S da Motta].........
AssociateDate/s of Hearing 21 July, 17 August 2006
Date of Decision 11 December 2006Representative of the Applicant Mr P Maishman
Legal Services Branch, Centrelink
Representative of the Respondent Mr D Miljanovic
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