Gerace and Secretary, Department of Social Services (Social services second review)

[2020] AATA 2438

Gerace and Secretary, Department of Social Services (Social services second review) [2020] AATA 2438 (10 July 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1168

Re:Maurizio Gerace

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:10 July 2020

Date of written reasons:        22 July 2020

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision of the Administrative Appeals Tribunal Tier 1 dated 31 January 2020 and in substitution for that decision, the Tribunal decides that Mr Gerace is entitled to his Disability Support Pension for the period 14 August 2019 to 11 September 2019.

.........................[sgd]............................................

Mr Rob Reitano, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – payment suspended – portability – whether applicant exceeded his portability entitlement – severely impaired disability support pensioner – indefinite portability – decision under review set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth) ss 1217, 1218AAA

WRITTEN REASONS FOR DECISION

Mr Rob Reitano, Member

22 July 2020

1. Maurizio Gerace (Mr Gerace) has asked that the Tribunal review a decision of the Administrative Appeals Tribunal (Social Services & Child Support Division, or Tier 1 of the Tribunal) dated 31 January 2020, which affirmed the decision of an authorized review officer upholding the Secretary’s decision to suspend Mr Gerace’s disability support pension from 14 August 2019 until 11 September 2019 because he had exhausted his portability entitlement.

2. I have decided to set aside the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 31 January 2020 and in substitution for that decision, decide that Mr Gerace is entitled to his Disability Support Pension for the period 14 August 2019 to 11 September 2019 and what follows are my reasons for making that decision.

   FACTS

3. Mr Gerace began receiving the disability support pension on 26 September 1991. He was subject to a preclusion period between 12 December 1996 and 21 May 2001, presumably because he received a payment of compensation. Mr Gerace started receiving his disability support pension again on 22 May 2001. In any event all that is important for present purposes is that before 15 August 2018 Mr Gerace had been in receipt of the disability support pension and was continuing to receive it until 14 August 2019 when it was suspended until 11 September 2019.

4. On 15 August 2018 Mr Gerace left Australia and travelled via Abu Dhabi, United Arab Emirates and Rome, Italy to Lamezia. Lamezia is a small city in the province of Catanzaro in Calabria, Italy. Lamezia is the place where Mr Gerace was born and where many of his family still live. On 10 September 2018 he left Lamezia and returned to Australia, again travelling via Rome and Abu Dhabi. He arrived back in Sydney at 6:30am on 12 September 2018. There are exactly 28 days between 15 August 2018 and 12 September 2018 if 15 August 2018 is treated as a day for the purpose of the calculation.

5. On 14 August 2019 Mr Gerace left Australia and travelled via Abu Dhabi, United Arab Emirates and Milan, Italy to Lamezia. On 9 September 2019 he left Lamezia and travelled via Rome and Abu Dhabi home to Australia, arriving back in Sydney at 6:30am on 11 September 2019. There are exactly 28 days between 14 August 2019 and 11 September 2019 if the first day of travel is counted as a day for the purpose of the calculation.

6. As I have said between 14 August 2019 and 11 September 2019 Mr Gerace’s disability support pension was suspended. This was because it was claimed that he had exceeded the maximum portability period, a total of 28 days in a 12-month period, that was attached to his receipt of the disability support pension.

7. On 9 July 2020 at the commencement of the hearing it came to light that Mr Gerace had been determined by the Secretary to be a ‘severely impaired disability support pensioner’. The Secretary conceded that when Mr Gerace left for Italy on 15 August 2018, he held severely impaired status such that he had an entitlement to unlimited portability.

   LEGISLATION

8. Section 1217(1) of the Social Security Act 1991 (Cth) (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).

9. Applying the table to an Australian resident disability support pensioner, the table prescribes that the maximum portability period for the payment as provided for by item 2, column 5 is:

   A total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving disability support pension (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D)

10. Or, alternatively, it might be ‘4 weeks (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D)’ because that is also entered alongside the entry for an Australia resident disability support pensioner in the table. That is, there are two entries in the table that could potentially apply to the same kind of disability support pensioner. Fortuitously that issue does not need to be unravelled because of what follows.

11. Item 2A of the table contains an entry for a ‘severely impaired disability support pensioner’ which provides for an unlimited portability entitlement. A ‘severely impaired disability support pensioner’ is a person that the Secretary has determined to be so under s.1218AAA of the Act.

    ISSUE

12. The issue is whether Mr Gerace has a limited or unlimited entitlement to portability of his disability support pension. If his entitlement was unlimited the Secretary had no basis for suspending his disability support pension.

    WAS THE ENTITLEMENT LIMITED?

13. The concession made by the Secretary is unequivocal and unqualified such that Mr Gerace is a disability support pensioner who is severely impaired. I find that he is.

14. The consequence is that it did not matter how many days he had spent overseas in 2018 and 2019 because of his unlimited entitlement. There were no grounds for suspending his disability support pension for the period 14 August 2019 to 11 September 2019. Mr Gerace should be paid his disability support pension for that period.

    CONCLUSION

15. I set aside the decision of the Administrative Appeals Tribunal Tier 1 dated 31 January 2020 and in substitution for that decision, decide that Mr Gerace is entitled to his Disability Support Pension for the period 14 August 2019 to 11 September 2019.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

............................[sgd]........................................

Associate

Dated: 22 July 2020

Date of hearing:	9 July 2020
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Services Australia