Frankos and Secretary, Department of Family, Community Services and Indigenous Affairs

[2006] AATA 297

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 297

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/204

GENERAL ADMINISTRATIVE DIVISION		)
Re		BASILIA FRANKOS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date3 April 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

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

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Carer Allowance – applicant travelled to Greece – maximum portability – portability limited to 13 weeks – whether discretion to extend – natural disaster – decision affirmed

Social Security Act 1991 ss 1217, 1218C

Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 s 3

REASONS FOR DECISION

3 April 2006   Senior Member L Hastwell   

1.      On 6 July 2004 Centrelink made a decision that a 13 week maximum portability period would apply to payment of Carers Allowance (CA) to Mrs Basilia Frankos (the applicant) during a period of absence overseas.  This would result in her CA being cancelled if she remained overseas after 10 October 2004.  A written advice to that effect was sent to the applicant’s home address in Adelaide on 6 July 2004.

2.      On 11 October 2004 a decision was made by Centrelink to cancel the applicant’s CA and a notice issued to that effect was sent to her Adelaide address.  An Authorised Review Officer affirmed the original decision on 19 May 2005.  The applicant sought review from the Social Security Appeals Tribunal (the SSAT) who affirmed the decision on 27 June 2005.  The applicant seeks a review of the SSAT decision.

legislation

3. The relevant legislation in contained in Part 4.2 of the Social Security Act 1991 (the Act) as amended by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (the Amending Act).  Section 1217(1) of the Act provides for the maximum term that a person can receive CA whilst overseas. The portability period is governed by the table set out at s 1217(5). Section 1217(1) of the Act provides:

“(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(4) of the Act provides:

“(4)If the person’s maximum portability period for the payment is a period of weeks, the person’s portability period for the payment, in relation to the period of absence, is the period:

(a)      beginning at the commencement of the period of absence; and

(b)      ending at the earlier of the following times:

(i)the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

(ii)the end of the period of weeks that is the person’s maximum portability period for the payment.

Note:People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.”

The relevant portion of the table at s 1217(5) of the Act that applies to the applicant is Item 6 which reads as follows:

“Portability of social security payments

Column 1      Column 2      Column 3      Column 4      Column 5
Item               Payment        Person          Absence        Maximum
  portability

period

6  Carer             All persons     Any                13 weeks”
  Payment   temporary                  

absence        

4. Section 1217(5) of the Act was amended by virtue of the Amending Act, s 3, Schedule 6 of which provides as follows:

“13      Section 1217 (table items 5 and 6)

Omit ‘26’, substitute ‘13’.”

The amending provisions took effect from 1 July 2004.

5. The only discretion to extend the person’s portability period is contained in s 1218C of the Act which provides:

“(1)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.

(2)The Secretary must not extend the person’s portability period under subsection (1) unless:

(a)      the event occurred or began during the period of absence; and

(b)if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.

…”

issues

6. The issue for the Tribunal to determine in this case is whether the correct portability period has been applied, and if so, whether it is appropriate for the Secretary to exercise the discretion set out in s 1218C of the Act and extend portability for the applicant’s CA in the relevant period. This particularly raises the issue of whether:

·a serious illness of the person or a family member of the person occurred or began during the period of absence that prevented the applicant returning to Australia; or

·a natural disaster in the country in which the applicant was located occurred or began during the period of absence.

the hearing

7.      The applicant represented herself at the hearing and gave evidence.  The T documents were received as Exhibit A1 and an appointment card given to the applicant when she attended at Centrelink on 6 July 2004 was received as Exhibit A2.

8.      The applicant has been caring for her ill husband for many years.  He is 90 years of age and in the 6 months preceding their trip overseas in 2004 he had suffered two falls.  His health was adversely affected and this made her decide that she would take him to Greece to have some treatment in natural springs.

9.      In June and July 2004 the applicant attended Centrelink to discuss her impending trip.  She complains that no one advised her that there was a change to the law taking effect on 1 July 2004 which reduced her maximum portability from 26 to 13 weeks.  At all times she believed she was entitled to 26 weeks portability of her CA.

10.     The applicant had originally anticipated leaving Australia on 11 July 2004.  She spoke to the respondent (the Department) on 6 July 2004 and advised that this was the proposed date of departure.  Her flight was brought forward and she left on 8 July 2004.  She did not receive a letter that was sent to her by the Department on 6 July 2004 (T6) in which she was told that if she remained out of Australia after 10 October 2004, her CA would stop.

11.     While absent from Australia, the applicant did not provide the Department with an overseas address.  She had her mail sent to her home address in Adelaide, where it was put into a locked letterbox.  She collects all her mail upon her return to Australia.  The CA is paid into an account in Australia and so when it was stopped in October 2004, she was in Greece and did not notice the payment stop as she was not accessing that account. 

12.     The applicant said that she told Centrelink she would be overseas until about November 2004.  The person who she spoke to did not tell her that she would lose her portability in October and that she only had 13 weeks of portability with her CA.

13.     She decided to stay in Greece until at least November 2004 to continue her husband’s treatment, and she then alleges that bad weather intervened.  As she thought she could stay for 6 months, she stayed on.  The 6 month period would have elapsed in January 2005, but she said at that stage there were terrible weather conditions in Greece, which she believed were related to the Asian tsunami, and further that the airfares were very expensive and she did not wish to travel back to Australia until such time as airfares were cheaper in February or March 2005.

14.     She considered that the Department had a greater obligation to advise her as to her maximum portability and she asked that the Tribunal exercise its discretion and extend portability beyond the 13 weeks in this instance to cover the period that she was out of Australia.

15.     The applicant returned to Australia in late April or early May 2005, and she made contact with Centrelink to advise of her return on 3 May 2005.

findings of fact

16.     The Tribunal made the following findings of fact:

·The applicant is a recipient of CA.  She has had previous absences from Australia and she understood that she was entitled to a maximum portability period of 26 weeks with respect to her CA while overseas.

·The applicant’s husband is elderly and is poor health and she travelled to Greece in July 2004 to enable him to have treatment in hot springs.

·The applicant approached Centrelink in June and July 2004.  She advised them that she was not certain of her return date to Australia.  On one consultation she told the Centrelink officer that it would be between October 2004 and January 2005, but in another interview she said she expected to be back in September or October 2004 (T5).  At all times she believed her CA was portable for 26 weeks.

·The applicant’s husband received the appropriate treatment overseas and they returned to Australia in late April 2005.  She made personal contact with Centrelink on 3 May 2005.

·The bad weather in Greece in December 2004/January 2005, and also the cost of airfares influenced the applicant’s decision to remain away until April 2005.  She was also desirous of enjoying Christmas in Greece with family and friends.

·The Department wrote to the applicant on 6 July 2004, which letter was sent to her Adelaide address advising of the portability period of 13 weeks.

·The Department wrote to the applicant on 11 October 2004 (T7) advising her that her CA had been stopped because she was still overseas and advising her of her right of review.  That letter was sent to her Adelaide address as no overseas address had been provided to the Department by the applicant.

·The Department wrote to the applicant once more on 10 January 2005 (T8) advising her of the cancellation of her CA.  That letter was also sent to her Adelaide address.

·The applicant contacted the Adelaide office of Centrelink on 13 December 2004, and was told on that date that the payment of CA had ceased due to the 13 week rule. 

·The applicant wrote to the Department on 29 November 2004 (T15) advising of delays due to bad weather, and stating her desire to spend Christmas with relatives and friends and indicating that she would return after January 2005 once fares had gone down. 

·The applicant wrote to the Department on 23 February 2005(T15) claiming that the tsunami had affected her return travel plans to Australia.  By then she had been made aware that her CA had ceased.

application of the law

17. The law is quite clear in this case. The relevant portability period after 1 July 2004 was 13 weeks and based on information provided to Centrelink by the applicant, her CA ceased on 10 October 2004. There is a discretion to extend portability as set out in s 1218C(1) of the Act. That discretion is limited by the specific terms of the legislation. The only provisions that could apply in this case would be s 1218C(1)(b) “a serious illness of the person or a family member of the person” or s 1218C(1)(h) “a natural disaster in the country in which the person is located”.

18. Looking at the first of these provisions, the event must occur or begin during the period of absence. The applicant’s husband has suffered serious illness for many years, and his illness did not occur or begin during the period of absence. Nothing different happened while he was away and in fact his health was improving during their visit to Greece. In the circumstances s 1218C(1)(b) is not applicable.

19.     The applicant asserts that a very bad winter was another reason that she was unable to return to Australia between December 2004 and February 2005, and she asks the Tribunal to consider whether the “natural disaster” provision can apply in her case.

20. Can bad weather be termed a natural disaster? A natural disaster is an event such as a cyclone, flood, fire, famine, volcanic eruption or tsunami. There is no definition of natural disaster in the Act

21.     The term “natural disaster” must be given its ordinary meaning.  It is an event of nature that has disastrous consequences for a community.  There is no evidence whatsoever that the bad weather in Greece had disastrous consequences for the community or part of the community.  The applicant asserts that some houses lost their roofs, but that is certainly not sufficient to turn a storm into a “natural disaster”.  The tsunami occurred in Asia and had no direct effect on the applicant.

22.     In the circumstances the Tribunal is unable to find that there is any basis on which the discretion to extend portability can be exercised in this case.  The applicant had some obligation to ensure that her mail reached her while she was away.  She acknowledges that she declined to provide an overseas contact address to Centrelink and that she made no arrangements for her mail to be collected while she was away.  Had she made such arrangements, she would have become aware of the limited portability of her CA in July or August 2004 and the consequences for her if she stayed on until the European winter began.

23.     The law is quite specific and the discretion to extend is limited by legislation.  There is no open-ended discretion whereby portability can be extended.

24.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 24 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  10 March 2006
Date of Decision  3 April 2006
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr C Goldsworthy
Solicitor for the Respondent     Centrelink Legal Services Branch