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

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision to pay the Applicant Age Pension at the portability rate following a 26-week absence from Australia. The reviewable decision, affirmed by the Tribunal, was based on the Applicant's Australian Working Life Residence (AWLR). The Applicant's portability rate was approximately one-third of the maximum Age Pension rate. The Authorised Review Officer (ARO) had made findings that the Applicant had been in receipt of the Age Pension since 2011, departed Australia in 2012 to reside in the United States, and had limited periods of presence in Australia since then. The ARO also found the Applicant owned no property or financial assets in Australia, had an American bank account, and her recorded home addresses were in the United States. While some minor discrepancies in the ARO's calculations of the Applicant's presence in Australia were noted, these were found to have no bearing on the outcome.

The primary legal issue before the Tribunal was whether the Applicant's Age Pension should be calculated at the portability rate, which is determined by her AWLR. This involved considering the provisions of sections 1220A and 1221 of the Social Security Act 1991 (Cth), which govern the calculation of pension portability rates. Specifically, the Tribunal had to determine the Applicant's AWLR and apply the relevant modules of the Pension Portability Rate Calculator to ascertain the appropriate residence factor and, consequently, the portability rate.

The Tribunal's reasoning centred on the application of the Pension Portability Rate Calculator. Section 1221 of the Act outlines the method for calculating a person's portability rate, which involves determining their AWLR (Module B), calculating a residence factor based on that period (Module C), and then multiplying the notional domestic rate of pension by this factor. The Tribunal noted that the Applicant had been continuously absent from Australia for more than 26 weeks from 28 January 2020, triggering the application of the portability rate calculation under section 1220A(1)(a). The Applicant did not dispute the calculation of the pension rate itself.

The Tribunal affirmed the reviewable decision, upholding the ARO's assessment of the Applicant's Age Pension at the portability rate, based on her Australian Working Life Residence. This decision confirmed the previous findings of the Authorised Review Officer and the Social Services and Child Support Division of the Tribunal.