JAMES WEBSTER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 797
•15 November 2012
[2012] AATA 797
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3818
Re
JAMES WEBSTER
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 15 November 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Applicant in receipt of disability support pension – Request for unlimited portability – Applicant experiencing health problems but not terminally ill – Applicant not prevented for travelling to Australia by accident or by hospitalisation – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 1217, 1218AAA, 1218AA, 1218AB, 1218C, 1218D
REASONS FOR DECISION
Mr R G Kenny, Senior Member
15 November 2012
BACKGROUND
James Webster was in receipt of disability support pension, under the Social Security Act 1991 (Cth) (the Act), when, on 2 May 2012, he travelled to the Philippines with an intention to reside there. In June 2012, Mr Webster requested that Centrelink grant him unlimited portability of his disability support pension. This was rejected by a Centrelink delegate on 12 July 2012. This decision was affirmed, on 23 July 2012, by an authorised review officer and, in turn, on 21 August 2012 by the Social Security Appeals Tribunal.
LEGISLATION AND ISSUES
Mr Webster’s qualification for a disability support pension is not in dispute. The issue is whether that payment may continue to be paid to him on an unlimited basis while he continues to reside in the Philippines.
Under s 1217 of the Act, disability support pension is ordinarily able to be continued to a person who is absent from Australia for a period of 13 weeks. In that sense, the payment is portable for that period. Extension of the 13 week period may be granted under ss 1218AB, 1218C or 1218D of the Act and, in this matter, extensions have been granted to Mr Webster until 10 November 2012 under s 1218C of the Act. Mr Webster seeks unlimited portability of his disability support pension which may be determined under ss 1218AA or 1218AAA of the Act. Those provisions read:
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a) the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b) the person’s portability period for disability support pension had not ended at the time the event occurred.
(3) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(4) A determination under subsection (1) is not a legislative instrument.
(5) In this section:
work means work:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
1218AA Unlimited portability period for disability support pension—terminally ill overseas disability support pensioner
(1) The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person’s absence from Australia is or will be permanent; and
(e) the purpose of the person’s absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person’s country of origin.
(2) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(3) If the Secretary revokes the determination, this Part has effect after the first time at which one of the qualifying circumstances does not exist as if the person’s maximum portability period for the pension were 13 weeks starting at that time.
Under each of those provisions, all of the qualifying circumstances must be satisfied. The issue for the Tribunal is whether Mr Webster’s situation meets those requirements. The effect of s 1218AAA(2) of the Act, which precludes a determination under s 1218AAA(1) of the Act from being made, also needs to be considered.
EVIDENCE AND CONSIDERATION
Mr Webster’s cardiologist in the Philippines, Dr Gerard Razon, reported on 23 May 2012 that he suffers from hypertension and coronary heart disease. His opinion was that Mr Webster should not travel to Australia because of the possibility of a heart attack due to the associated stress which makes his heart condition unstable. He also referred to domestic difficulties that Mr Webster had experienced while he was in Australia. Dr Razon confirmed his opinion in a further report, dated 27 July 2012. Support for Mr Webster was also provided in the report from Dr Michael Kan who noted that Mr Webster suffers from the conditions identified by Dr Razon as well as posttraumatic stress disorder, headaches, memory impairment and scoliosis.
Mr Webster’s evidence was that he has been hospitalised for periods in recent times and his contention was that he was too unwell to be expected to travel to Australia. He was critical of the procedures that Centrelink had applied to him in rejecting his request for unlimited portability. He was also critical of the scheme of the Act in its treatment of disability support pension recipients who choose to live outside of Australia. I have noted those concerns but am bound to apply the terms of the Act as they stand.
As noted above, all of the requirements of s 1218AA of the Act must be met for unlimited portability to apply under that provision. It is not in dispute that Mr Webster is in ill health. However, the medical evidence does not support a finding that he is terminally ill as required for s 1218AA of the Act to apply to him. Accordingly, I am satisfied that s 1218AA of the Act is not satisfied.
Mr Bob Hamilton, for the respondent, submitted that a determination of unlimited portability under s 1218AAA(1) of the Act should not be made in Mr Webster’s case because of the terms of s 1218AAA(2) thereof. I accept his submission in that regard. The unlimited portability provisions noted above commenced operation on 1 July 2012. It is not in dispute that Mr Webster was absent from Australia at that time and has been ever since. There is no evidence that Mr Webster has experienced a serious accident, as opposed to significant health problems, and has not been in hospital to an extent that would preclude his return to Australia. I have noted Dr Razon’s reference to the possibility of heart problems in the event that he undertakes air travel to Australia. However, Mr Webster is not precluded from doing so by a serious accident or hospitalisation. Those are the events specifically listed in s 1218AAA(2) of the Act and I am satisfied that a determination under s 1218AAA(1) of the Act may not be made because it is precluded by the application of s 1218AAA(2) of the Act to Mr Webster’s circumstances.
DECISION
The decision under review is affirmed.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 15 November 2012
Date of hearing 13 November 2012 Applicant By Telephone Solicitors for the Respondent Mr Bob Hamilton
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