Fenton and Secretary, Department of Family and Community Services

[2005] AATA 1300

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1300

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/110

GENERAL ADMINISTRATIVE DIVISION		)
Re		SANDRA FENTON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date22 December 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – applicant left Australia and returned to the UK for varying periods of time – maximum portability – portability limited to 13 weeks – severely disabled – decision affirmed

Social Security Act 1991 ss 1217, 1218AA

REASONS FOR DECISION

22 December 2005   Senior Member L Hastwell  

1.      Mrs Sandra Fenton (the applicant) was granted Disability Support Pension (DSP) on 9 September 1993.  At the time she was assessed as being severely disabled.  Under the provisions of the Social Security Act 1991 (the Act) as it then stood, she was entitled to receive DSP indefinitely while absent from Australia. 

2.      The applicant was born in the United Kingdom (the UK) and since being granted DSP she has returned there for varying periods of time.  She has family in both countries, and has moved between the two countries.

3.      On 25 February 2005 the respondent (the Department) made a decision to limit the payability of DSP to the applicant to 13 weeks during any overseas absence from Australia.  This decision was affirmed by an Authorised Review Officer on 16 March 2005, and subsequently affirmed upon review by the Social Security Appeals Tribunal (the SSAT) on 29 March 2005.  The applicant has sought a review of that decision to this Tribunal.

legislation

4.      There have been two legislative changes since the original grant of DSP with indefinite portability to the applicant in 1993.  The first of these changes came about in 2000.  After that change a person who did not come within the “severely disabled” category was entitled to a maximum portability of pension of 26 weeks.  Severely disabled people were able to maintain indefinite portability of DSP. 

5.      There were further legislative amendments in 2004.  The relevant provisions of the Act for the Tribunal to consider in the context of this hearing are as follows.  Section 1217(1) of the Act provides:

“Meaning of maximum portability period

(1)The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a)      the payment (as specified in column 2 of the table); and

(b)the class of persons to which the person belongs (as specified in column 3 of the table).”

Section 1217(5) provides that the maximum portability for a DSP pensioner of any category is 13 weeks.

6.      A savings provision is contained in s 1218AA of the Act which provides:

“(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.

(2)The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.

(3)If the Secretary revokes the determination, this Part has effect after the first time at which one of the qualifying circumstances does not exist as if the person’s maximum portability period for the pension were 13 weeks starting at that time.”

7.      The only discretion arises under Clause 135(1) of Schedule 1A of the Act which provides as follows:

“Unlimited maximum portability for disability support pension

(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.”

agreed facts

8.      The following are agreed facts:

·The applicant was present in Australia on 1 July 2004.

·The applicant does not suffer from a terminal illness.

issues

9.      The issues for the Tribunal to determine in this instance are:

·whether the new portability rules apply to the applicant;

·whether the maximum portability in her case is 13 weeks; and

·whether there is any basis on which she could still claim indefinite portability.

the hearing

10.     The applicant represented herself.  Ms Powell represented the Department.

11.     The applicant acknowledges that she has had numerous absences from Australia over the years.  Her understanding is that because she had been an Australian citizen for many years and spent her entire working life in Australia, that she was given DSP in 1993 on the basis that she could take it overseas indefinitely.  That was the rule as at that time.

12.     The applicant complains that she was not advised of the significance of being in Australia on 1 July 2004.  The rules changed on that date with respect to portability of pensions.  She claims to having been significantly financially prejudiced by the change in the rules.  She would like to live permanently in the UK, and not just for periods of 13 weeks at a time.

13.     The applicant gave her evidence in a straightforward manner.  She felt that she had been cheated of the opportunity to retain a longer period of portability with respect to her DSP because of a failure by the Department to notify her of impending changes to the Act.   She was not advised of a change in her individual classification from the category of “severely disabled” to disabled, nor had she been advised of the changes with respect to the legislation such that her presence in Australia on 1 July 2004 would significantly affect her ongoing entitlement to portability of her DSP. 

14.     The applicant has had some significant setbacks in her life in recent times including the loss of a child and the serious illness of her estranged husband.  She wishes to be able to reside indefinitely in the UK where she has family. She seeks that indefinite portability with respect to her DSP be restored.

15.     The Tribunal had regard to all the documentation on the file and the submissions made by both parties in reaching its decision.

findings of fact

16.     The applicant was granted DSP on 9 September 1993 on the basis that she was severely disabled.  At that time she was entitled to receive DSP indefinitely during any absence from Australia.

17.     In November 2002 the Department reviewed her impairment and determined that she was no longer severely disabled.  As a result of the amendments that had taken place to the Act, this automatically reduced her portability to 26 weeks.  There has been no appeal sought with respect to an alteration to her degree of disability.  She was not advised of the reclassification.  She first became aware that she was no longer considered to be “severely disabled” in 2004.

18.     The applicant has moved between Australia and the UK over the last two years.  Paragraph 2 of the SSAT decision of 29 March 2005 (T2) details those movements.  Most significantly, she returned to Australia on 26 June 2004 and remained here until 15 September 2004 when she went overseas again.  She returned to Australia in December 2004 with a plan to depart Australia once more in March 2005. 

19.     The applicant received a letter from the Department on 26 March 2001 advising her that she could keep her DSP indefinitely while overseas because of the severity of her impairment. 

20.     The applicant received a letter notifying her that her maximum portability was 26 weeks in 2004.  The letter sent to her on 29 November 2002 (T7) does not advise of the change in her classification.  It referred to “a recent medical review”.

21.     The applicant has maintained her Adelaide address as her address for correspondence from the Department.  She did not establish a home base in the UK during the years that she was travelling between the two countries.

22.     The applicant attended at a Centrelink office on 28 June 2004 and was told by a counter officer that she could return to the UK and maintain indefinite portability with respect to her pension.  She had only been back in Australia for two days at that time.  There were compelling family reasons that were to keep her here for the next few months.  At that stage she was planning to return to the UK in September of that year.

23.     The applicant was not aware, nor was she advised, that her presence in Australia on 1 July 2004 may impact on the portability of her pension.

consideration and application of the law

24.     Until September 2000 the applicant was entitled to indefinite portability with respect to her pension.  The changes to the law in September 2000 did not affect her at the time as she was still entitled to indefinite portability as she came within the category of being “severely disabled”.

25.     In November 2002, an internal review was carried out with respect to her classification, and it was decided that she was no longer severely disabled.  Her classification was changed accordingly.  Her maximum portability thereby reduced to 26 weeks as a result of the legislative changes in 2000.

26.     The applicant was advised by letter in November 2002 that she had continuing eligibility for pension as a result of a medical review.  Issues of portability were not raised in that letter, which was sent to her Australian address, being the address she maintained for contact with Centrelink.

27.     The applicant has moved in and out of Australia over the years, spending time in the UK and time in Australia.  She was physically present in Australia on 1 July 2004.  She was not aware that her presence in Australia on that date would impact on the portability of her pension.

28.     The relevant legislative provision is quite specific in that pursuant to s 1217(1) of the Act her portability from 1 July 2004 is as set out in s 1217(5).  It is 13 weeks for a person on DSP.

29.     The savings provision, as specified in Clause 135(1) of Schedule 1A of the Act, only applies if at the commencement of the savings provision, ie on 1 July  2004, that person is “absent from Australia and receiving disability support pension” at the time that the clause came into effect. 

30.     The fact that the applicant wished to reside overseas and was planning to return to the UK in the foreseeable future does not bring her within the savings provision contained in Clause 135(1) of Schedule 1A of the Act.  She was present in Australia and Clause 135(1)(a) requires physical absence from Australia for there to be any prospect of applying that provision. 

31.     The Tribunal does not accept the applicant’s argument that because she intended to return to live in the UK the Tribunal can interpret her as being absent on the relevant date.

32.     The provisions which took effect from 1 July 2004 are applicable to the applicant, and they allow her to receive payments for a maximum of 13 weeks when absent overseas.

33.     The only discretion available to the Department is a discretion contained in s 1218AA(1) of the Act which provides that a person’s maximum portability period for DSP is an unlimited period if a number of particular circumstances exist.  That provision is to be read conjunctively, and one of the requirements is that a person must be terminally ill for that provision to apply.  The applicant is not terminally ill.

34.     The Tribunal affirms the decision under review.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ...........J Coulthard............................................
  Associate

Date of Hearing  11 November 2005
Date of Decision  22 December 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms J Powell
Solicitor for the Respondent     Centrelink Legal Services Branch