Foster and Secretary, Department of Employment and Workplace Relations

[2006] AATA 983

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 983

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2006/602

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALAN FOSTER

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS  

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date21 November 2006

PlaceMelbourne

Decision The decision under review is affirmed.

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

Senior Member

SOCIAL SECURITY ‑ portability of pension – s1218AA of Social Security Act – all parts must be satisfied ‑ applicant does not suffer a terminal illness – decision affirmed

Social Security Act 1991 (Cth) s23(4B), s1218AA

Re Aguilar-Trejo and Anor and Secretary, Department of Family and community Service [2005] AATA 734

Re Toseska and Secretary, Department of Family and community Services [2005] AATA 386

REASONS FOR DECISION

21 November 2006   Mr John Handley, Senior Member

1.      The Social Security Act 1991 (the Act) permits “portability” of certain types of pensions and benefits.  This means that persons are permitted to be absent from Australia whilst in receipt of pension or benefit but for a limited period of time.  In the case of persons who receive disability support pension (DSP), the portability is limited to a period of 13 weeks.  Mr Foster, the applicant in these proceedings, is one such person.

2.      The circumstance of this application are very unfortunate but having heard his case, having read the relevant documents, having heard from Mr Wee who appeared on behalf of the Secretary and having regard to the applicable legislation, the decision of the Social Security Appeals Tribunal (SSAT) under review in these proceedings must be affirmed.

3.      The circumstances giving rise to this application may be briefly summarised as follows.

4.      In July 1996, Mr Foster suffered a massive cerebral haemorrhage whilst on holidays in the United Kingdom.  Thereafter he was treated extensively both in England and in Australia.  He qualified for a DSP in 1998 and continues to receive it.  The extent of the cerebral haemorrhage has caused him to have restriction and loss of use of his left arm and shoulder, both his legs and has caused loss of vision.  He has no difficulty with verbal communication but has impaired comprehension and impairment of decision-making.  On 18 October 2006, he was assessed by Health Services Australia as having a total impairment rating of 50.  (The minimum impairment rating under s94 of the Act in order to qualify for DSP is 20).

5.      In 1999, Mr Foster travelled to, and has subsequently resided, in Thailand.  He intended then to work as a tour operator and / or tour guide, either as a salaried person for a travel organisation or on his own account.  He continues to hold that intention although work opportunities to date have been very limited.  By reason of the cost of living in Thailand, Mr Foster is more than adequately able to maintain himself, on the pension that he has received to date.

6.      In 2005, Mr Foster said that the legislation was amended to prohibit being absent from Australia…