Katsis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 787

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 787

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: 2011/2726

GENERAL ADMINISTRATIVE DIVISION		)
Re		GALATIA KATSIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R J Groom AO (Deputy President)

Date8 November 2011

PlaceHobart

Decision The decision under review is affirmed.

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

The Hon R J Groom AO

(Deputy President)

CATCHWORDS

SOCIAL SECURITY – Disability support pension – applicant left Australia to reside overseas – portability period of 13 weeks – no ground for extending portability period – decision under review affirmed.

Social Security Act 1991, ss 23, 1217, 1218AA, 1218C

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

The Hon R J Groom AO (Deputy President)

INTRODUCTION

1.The applicant was granted a disability support pension on 14 September 2010.  On 18 September 2010 she left Australia to live in Greece.  After leaving Australia her pension continued to be paid for a period of only 13 weeks.  (The period during which a pension remains payable when the beneficiary is overseas is known as the “portability” period).

2.The issue to be determined by this Tribunal is whether the decision to limit the portability period to 13 weeks is correct.

BACKGROUND

3.Before the applicant left Australia she told Centrelink the reason she was travelling to Greece was to be with her adult son, Ioannis, who was to have further surgery for serious injuries suffered in a motor vehicle accident which had occurred in 2009. 

4.The applicant told an officer of Centrelink that she would return to Australia by “… 19 March 2011” (see T3. Pg 6.).  In a letter from Centrelink dated 15 September 2010 the applicant was informed that her pension would cease on 18 December 2010 (T5).  The applicant continues to live in Greece. 

5.Mrs Katsis asked that the decision by Centrelink made on 16 December 2010 to limit portability to 13 weeks be reviewed. On 8 February 2011 an Authorised Review Officer affirmed the earlier decision. The applicant then appealed to the Social Security Appeals Tribunal (“SSAT”) which, on 12 May 2011, affirmed the decision. Mrs Katsis now asks this Tribunal to review the SSAT decision “on the papers” that are before it (see section 34J of the Administrative Appeals Tribunal Act 1975. The respondent consents to the application being determined in that manner.

THE LAW

6.The relevant law is found in the Social Security Act 1991 (“the Act”) as amended by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2007 Budget and Other Measures) Act 2003.  That amending legislation reduced the allowable portability period from 26 weeks to 13 weeks. 

7.In particular circumstances an indefinite portability period is allowed. This is limited to the “severely disabled”, except for an individual who comes within the terms of section 1218AA of the Act, or the savings provisions in Schedule 6 of the amending Act. The savings provisions only apply to people who were overseas on the 1 July 2004 and who met the other applicable requirements.

8.The Tribunal is satisfied that the applicable portability period is 13 weeks (section 1217 of the Act), unless the applicant satisfies the “qualifying circumstances” for an unlimited portability period in section 1218AA of the Act, or unless the 13 week period can be extended because Mrs Katsis was unable to return to Australia due to the occurrence of an event specified in section 1218C of the Act.

9.It should be mentioned that an International Agreement under the Social Security (International Agreements) Act 1999 may modify the portability rules.  There is an Agreement in existence between Australia and Greece, but it applies to age pensions only and has no application to disability support pensions. 

THE LEGISLATION

10.Section 1218AA of the Act provides as follows:

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 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.

11.Section 1218C of the Act is in the following terms:

1218C.(1)       The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

(a)a serious accident involving the person or a family member of the person;

(b)a serious illness of the person or a family member of the person;

(c)the hospitalisation of the person or a family member of the person;

(d)the death of a family member of the person;

(e)the person’s involvement in custody proceedings in the country in which the person is located;

(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

(g)robbery of serious crime committed against the person or a family member of the person;

(h)a natural disaster in the country in which the person is located;

(i)political or social unrest in the country in which the person is located;

(j)industrial action in the country in which the person is located;

(k)a war in the country in which the person is located.

(2)     The Secretary must not extend the person’s portability period under subsection (1) unless:

(a)the event occurred or began during the period of absence; and

(b)if the event is political or social unrest, industrial action or war – the person is not willingly involved in, or willingly participating in the event.

(3)     The Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.

CAN THE APPLICANT’S PORTABILITY PERIOD BE EXTENDED BEYOND 13 WEEKS?

12.Section 1218AA does not apply in this case. The requirements in that section are conjunctive. The person must be both “severely disabled” and “terminally ill”. It is clear on the evidence that the applicant does not satisfy the definition of “severely disabled” (section 23(4) of the Act) as she had an assessed work capacity of 8-14 hours per week “with intervention”. There is also no evidence that the applicant is suffering from a terminal illness.

13.The only other possible ground for extending the portability period beyond 13 weeks is if an event specified in section 1218C has occurred. However, section 1218C(2) of the Act requires that the event must have “occurred or began during the period of absence”.

14.The applicant has provided several medical reports in the Greek language. Those reports have been translated into English.  A report dated 7 October 2010 is included in those reports.  It is from Christos Angelidis who is a “director” and “orthopaedic specialist”.  He states that “Ioannis Katsis” is “in need of emergency admission for operation due to fibular of the fracture”.

15.The evidence clearly establishes that the applicant left Australia prior to her son’s further operation on his leg.  The motor vehicle accident itself had occurred in 2009.  The applicant left Australia knowing that Ioannis was soon to have his fourth operation because she wished to be with him and “to assist him” (T3).

16.After consideration of all of the material before it the Tribunal is satisfied that no event as specified in section 1218C(1) “… occurred or began during the period of absence;”.

CONCLUSION

17.Neither section 1218AA nor section 1218C applies in the circumstances of this case. There is therefore no ground for extending the portability period beyond 13 weeks.

DECISION

18.The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President).

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

Date/s of Hearing  5 October 2011
Date of Decision  8 November 2011