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

This matter concerned an application for review of a decision to affirm the suspension of Mr Hartigan's disability support pension (DSP). The suspension occurred on 12 September 2018, on the basis that Mr Hartigan had exceeded the maximum portability period for DSP payments. Mr Hartigan had previously travelled overseas from 28 November 2017 to 20 December 2017 (14 days), and then travelled to Nepal from 29 August 2018 to 13 September 2018 (13 days). The Department of Human Services – Centrelink determined that this amounted to 29 days of absence from Australia within a 12-month period, thereby exceeding the 28-day maximum portability period allowed for DSP.

The primary legal issue before the court was whether Mr Hartigan was considered absent from Australia for more than 28 days for the purposes of the *Social Security Act 1991* (Cth). This question hinged on whether the day of departure from Australia, 29 August 2018, counted as a day of absence. If it did, Mr Hartigan would have been absent for 29 days, leading to the suspension of his DSP. If it did not, his absence would be counted as 28 days, and his DSP would remain payable.

The court considered section 1217(4)(a) of the *Social Security Act 1991*, which states that the maximum portability period begins on the commencement of the period of absence. The court accepted the respondent's submission that this provision includes the date upon which the period of absence commences. Applying this to the agreed facts, the court found that Mr Hartigan had cleared immigration control before 11:30 pm on 29 August 2018, and his flight departed no earlier than that time. Therefore, he was considered absent from Australia on 29 August 2018. This meant he had accumulated 29 days of absence within the relevant 12-month period.

Consequently, the court affirmed the decision to suspend Mr Hartigan's disability support pension on 12 September 2018, as he had exceeded the maximum portability period of 28 days.