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

This matter concerned an appeal by Miss Green against a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 had affirmed a decision made by an authorised review officer on 10 September 2021, which concerned the portability of Miss Green’s disability support pension. The decision under review was specifically the refusal to determine that Miss Green’s disability support pension was portable for an unlimited period.

The primary legal issue before the Tribunal was whether Miss Green qualified for unlimited portability of her disability support pension under the relevant provisions of the Social Security (Administration) Act 1999. This involved an interpretation of the conditions set out in section 1218AAA(1) of the Act, which stipulate the circumstances under which the Secretary may determine a person's maximum portability period to be unlimited. These circumstances include receiving a disability support pension, having a severe impairment expected to last at least five years, and that this impairment would prevent the person from performing any work independently of a support program if they were in Australia.

The Tribunal noted that the decision to cancel Miss Green’s disability support pension on 11 January 2021 had not been reviewed by an authorised review officer, and therefore, the AAT1’s decision did not address whether Miss Green remained a resident of Australia and thus qualified for the pension on that basis. The Tribunal observed that a decision regarding unlimited portability should ideally precede a decision to cancel a pension, as unlimited portability removes the requirement for the recipient to be a resident of Australia. The Tribunal indicated that while there might be circumstances for a second review of a purported AAT1 decision, it was not appropriate in this case. Miss Green was advised that she could still seek review of the decision to cancel her pension, as that decision had not yet undergone an internal review.