Katsidonis and Secretary, Department of Employment and Workplace Relations

[2006] AATA 67

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 67

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/66

GENERAL ADMINISTRATIVE DIVISION		)
Re		GEORGIA KATSIDONIS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date25 January 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – portability of Disability Support Pension limited to 13 weeks – decision under review affirmed

Administrative Appeals Tribunal Act 1975 s 3(3)

Social Security Act 1991 1215, 1217, 1218AA

Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297

REASONS FOR DECISION

25 January 2006   Mr J G Short (Member)

1.      Ms Katsidonis has been in receipt of Disability Support Pension (DSP) since 4 March 1999.  She and her husband travel annually to Greece, and have done so since about 1999.  Ms Katsidonis had been able to continue to receive DSP during absences from Australia of up to 12 months.  Changes to the relevant legislation occurred in July 2004 purporting to restrict portability of DSP to a period of 13 weeks after leaving Australia.

2.      On 15 December 2004 a Centrelink officer, in response to an enquiry from Ms Katsidonis, made a decision declaring that for any future absences from Australia, that is any absences from Australia after 30 October 2004 (the date Ms Katsidonis last returned to Australia) the changed legislation (ss 1215 and 1217 of the Social Security Act 1991 (the Act)) combined to restrict portability of Ms Katsidonis’ DSP to a period of 13 weeks.  This decision was affirmed by the Social Security Appeals Tribunal (the SSAT) on 3 March 2005. 

3.      The Tribunal was assisted by an interpreter in the Greek language.

preliminary issue

4. The decision under review is a decision to make a declaration to the effect that Ms Katsidonis would be subject to a maximum 13 week portability of her DSP from the time she next left Australia. It was accepted by both parties that the Tribunal had jurisdiction to make the determination in respect of this decision. This was not however an end to the matter as such an agreement between the parties cannot confer jurisdiction if the Tribunal has not been provided with such jurisdiction. I consequently considered the definition of the word “decision” as it appears in s 3(3) of the Administrative Appeals Tribunal Act 1975, as amended.  That definition of “decision” includes “making a declaration, demand or requirement”.

5.      I considered Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297 in which Spender J made the following comment:

“9What has to be understood, however, is that the function of the AAT is to review "decisions made under enactment", and as the High Court explained in Australian Broadcasting Authority v Bond (1990) 170 CLR 321, decisions in that context mean operative decisions or final decisions and not steps along the way, or decisions made along the way leading to that final or operative decision. It is this understanding which is crucial for the present application.

10 What is or is not the particular allowable study period for Mr Martinsen at any particular time is not a decision made under an enactment. The relevant decision is the eligibility for the payment of Austudy: that entitlement may require a determination of what is the appropriate allowable study time, but it need not necessarily involve that question. …”

6.      I have reached the view that the decision under review is a declaration and not simply a step along the path to making a decision.  In these circumstances I consider that this Tribunal does have jurisdiction to review the decision made by Centrelink on 15 December 2004.

evidence of ms katsidonis

7.      Ms Katsidonis was referred to paragraph 8 of the Reasons for Decision provided by the SSAT following its decision dated 3 March 2005. 

8.      Paragraph 8 of the SSAT Reasons for Decision (T2/5) purported to record the statements of fact and submissions made by Ms Katsidonis at the SSAT hearing.  At the hearing before me, Ms Katsidonis agreed the accuracy of all of the statements recorded in that paragraph. 

9.      Ms Katsidonis’ statements and submissions made to the SSAT are to the effect that Ms Katsidonis understood that there had been a change to the law, and that in relation to any departure from Australia subsequent to 30 October 2004, a 13 week maximum portability period would apply.  Ms Katsidonis said however that the law was unfair in the light of her circumstances.  She said that she had worked in Australia since the age of 19 years and had then been in receipt of DSP since 1999.

10.     Ms Katsidonis said that effectively the legislation allows her husband to continue to receive Age Pension during extended absences from Australia while precluding her from continuing to receive DSP after a 13 week absence from Australia.  She said that she and her husband were being separated by that legislation.  It was too expensive to maintain accommodation in both Australia and Greece.  Her husband suffers from depression and benefits from her company and from his extended visits to Greece.

11.     Ms Katsidonis discussed the Explanatory Memorandum which accompanied the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and other Measures) Bill 2003.  The final paragraph of that Memorandum reads as follows:

“These amendments are intended to encourage people who are workforce age and on income support payments to remain in Australia and be available to contribute through employment or social participation.”

Ms Katsidonis said that as she is now 62 years of age and has spinal injuries, there is no chance of her finding employment and consequently the intent of the amending legislation has no application in her personal circumstances.

12.     Ms Katsidonis said that her husband last travelled to Greece on 24 February 2005.  She remained in Australia until 15 September 2005 when she travelled to Greece to be with her husband.  They returned to Australia on 30 November 2005.

13.     Ms Katsidonis said that while in Greece she supports and cares for her husband and also cares for her aged mother.  She confirmed at hearing that her husband managed his medication by himself during his period in Greece from February 2005 until she joined him in September 2005.

findings of fact

14.     On the evidence before me, including the evidence recorded in paragraph 8 of the SSAT’s Reasons for Decision, I find that Ms Katsidonis first returned to Australia after 1 July 2004, on 30 October 2004.  I further find that Ms Katsidonis is in receipt of DSP.

application of the law

15.     Ms Katsidonis had been visiting Greece with her husband for a number of years.  She had the benefit of saving provisions of the Act which, notwithstanding amendments to the period of portability of certain pensions, preserved an entitlement for Ms Katsidonis to remain absent from Australia and continue  to receive DSP for a period of 12 months. 

16.     The effect of Schedule 1A of the Act was to amend the effect of the saving provisions so that from the date of any return to Australia after 1 July 2004 Ms Katsidonis would be subject to the maximum 13 week portability provisions described in ss 1215(1), 1217(1) and 1217(2) of the Act.

17.     Section 1217 of the Act sets out the maximum portability period for various benefits by reference to a table located at the end of that section, which provides as follows with respect to DSP:

“Portability of social security payments

Column 1      Column 2      Column 3      Column 4      Column 5
Item               Payment        Person          Absence        Maximum
  portability

period

3  Disability        All persons     Any absence   13 weeks (but see
  support   also section

pension  1218AA)”

18.     This table prescribes a maximum portability period of 13 weeks for DSP.  The only exception provided is under s 1218AA of the Act which reads as follows:

“(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.”

19.     In the light of my finding that Ms Katsidonis first returned to Australia (after the amending legislation took effect) on 30 October 2004 and that she continues to be in receipt of DSP and further that Ms Katsidonis is not a person who is terminally ill and is not a person whose absence from Australia is likely to be on a permanent basis, I consider that Ms Katsidonis is subject to the current provisions of the Social Security Act 1991 and the portability of her DSP is confined to a period of 13 weeks from the date she leaves Australia.  The decision under review is consequently affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JG Short (Member)

Signed:         ...........J Coulthard.......................................
  Associate

Date of Hearing  8 December 2005
Date of Decision  25 January 2006
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms J Powell
Solicitor for the Respondent     Centrelink Legal Services Branch