Janakievski and Secretary, Department of Family and Community Services

[2005] AATA 490

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 490

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/193

GENERAL ADMINISTRATIVE DIVISION		)
Re		ZORAN JANAKIEVSKI

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr M Griffin, Member

Date30 May 2005

PlaceSydney

Decision  The decision under review is affirmed.

[sgd] Mr M Griffin   Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - portability period for person living overseas - whether person is terminally ill - decision under review affirmed.

LEGISLATION

Social Security Act 1991 ss 1218AA, 135

REASONS FOR DECISION

30 May 2005 Mr M Griffin, Member         

1.      This is a review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 18 January 2005 (T2). The SSAT affirmed a Centrelink decision, made on 15 November 2004 (T4) and affirmed by an authorised review officer on 17 November 2004 (T5), that Mr Zoran Janakievski could not be paid disability support pension (“DSP”) for more than 13 weeks after leaving Australia.

background

2.      Zoran Janakievski is the son of Zivka Janakievski. The Janakievski family arrived in Australia from Macedonia in 1997. On Australia Day in 1998 Mr Janakievski and Zoran were injured in a motor vehicle accident. Zoran subsequently developed a psychiatric condition and was assessed by Centrelink as severely disabled and granted him DSP in October 2003 (T3). The letter of advice about the DSP (T3) stated:

“…This means that your Disability Support Pension can be paid to you, while you are overseas, indefinitely. Your basic pension payments will not cease or reduce because you are overseas.

The above assessment has been made based on current legislation and is subject to possible future changes in legislation. Please notify Centrelink six weeks prior to your planned trip overseas, to provide us time to check how your departure will affect your payment.”

3.      Mrs Janakievski dealt with Centrelink and all other authorities on her son’s behalf.  She told the Tribunal that she had made telephone contact with Centrelink on several occasions about the family’s decision to return to and live in Macedonia. She said she was advised, as consistent with the October 2003 letter, that Zoran would be able to receive the pension indefinitely in Macedonia. 

4.      Mrs Janakievski heard an announcement on the radio in about mid 2004 that there was to be legislative change affecting the continued payment of the DSP. She said she rang Centrelink and spoke to an officer who advised her that the change would affect payments to herself and her husband but would not affect Zoran’s continued receipt of the DSP. Acting on this advice Mrs Janakievski made airline bookings to return to Macedonia in October 2004. At that time she checked again with Centrelink and received the same advice from the same officer, that Zoran’s pension would not be affected. She said:

“They told me to book the tickets and come back when we got the tickets.”

She said:

“We got the tickets from the travel agent and rang again to make the arrangements and was only at that stage she told me of the change, that is, he would receive it for only three months, the same as my husband. Prior to that telephone conversation I was told that Zoran would receive the Disability Support Pension for ever.”

5.      Zoran Janakievski suffers from a psychiatric condition. However, there is no medical evidence to indicate that he is seriously ill physically in any way or that he has a reduced life expectancy for a man of his age.

legislation

6. The legislation affecting the portability of pension was changed with effect 1 July 2004. Section 1218AA of the Social Security Act 1991 (“the Act”) provides the qualifying circumstances for portability of the DSP. It relevantly provides:

“1218AA(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 ss 23(14); or

(ii) to return to the person’s country of origin.

1218AA(2) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.

1218AA(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.”

7. Section 135(1) of the Act provides for savings provisions introduced on 1 July 2004. It relevantly provides:

“135(1) The Secretary may determine that a person’s maximum portability period for disability support pension is an unlimited period if:

(a) at the commencement of this clause, the person is absent from Australia and receiving disability support pension; and

(b) under this Act as in force immediately before the commencement, that absence could not affect the person’s right to continue to be paid the disability support pension throughout the period of that absence; and

(c) after the commencement, the person enters Australia but does not become an Australian resident again.

Note: The condition in paragraph (1)(b) may be met:

(a) because the person was severely disabled (see subsection 1214(1) and item 2 of the table in subsection 1217(5) as those subsections were in force just before the commencement; or

(b) because clause 128 (as in force just before the commencement) applied to the person section 1213A as in force before its repeal by the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000.

discussion of issues

8.      Mrs Janakievski said that her concern was not with the law, but with the incorrect advice that she was given by the Centrelink officer. She said that the situation had caused her great distress and upset. She said that her husband and son both need care and support and it was necessary for her to return to Macedonia to receive that care and support. She said that she had a daughter and lot more relatives living in Macedonia who would be able to assist her in the care of her husband and son. She said that her husband has a brother and sister living in Australia but they were not close and that the family had not and would not provide the support that she required. She said that it was an unfair situation given that she had contacted Centrelink as required and had been given the incorrect information by the Centrelink officer.

9. Mr Zhang, a Centrelink Advocate appearing for the Respondent, said that the law is quite clear and that Mr Zoran Janakievski did not meet the criteria for the savings provision in section 135(1) of the Act because he was not absent from Australia on 1 July 2004 when the savings provision took effect. Mr Zhang pointed out that to satisfy the requirements of section 1218AA, Mr Zoran Janakievski would not only have to be severely disabled and in receipt of the DSP but also terminally ill. He said that the Department’s policy was that terminally ill is defined as a medical condition that is chronic and debilitating with the prognoses that the condition is terminal and life expectancy is 24 months or less.

10.     Mrs Janakievski is understandably upset and disappointed by the incorrect advice received from the Centrelink officer. Mr Zhang for the Respondent did not challenge the truth of Mrs Janakievski’s evidence about this incorrect advice or lead any evidence to the contrary.  I accept Mrs Janakievski’s evidence that she did receive incorrect advice from the Centrelink officer.

11. However I am unable to find any provision in the legislation which allows the Tribunal any discretion to vary the requirements of section 1218AA of the Act. I find on the evidence that Mr Zoran Janakievski was present in Australia on 1 July 2004 and therefore does not meet the requirements of the savings provision of section 135(1) of the Act. I find on the evidence that Mr Zoran Janakievski is severely disabled and is receiving the DSP. I find on the evidence that Mr Zoran Janakievski is not terminally ill. It follows therefore that Mr Zoran Janakievski does not satisfy the requirements of section 1218AA of the Act. It follows that should Mr Janakievski leave Australia, his entitlement to the DSP will be for a period of 13 weeks only after the date of his departure.

decision

12.     The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  19 May 2005
Date of Decision  30 May 2005
Representative for the Applicant               Zivka Janakievski (mother)
Representative for the Respondent          Andrew Zhang