Kenneth Plowright and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 404

[2013] AATA  404

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/5174
Re	Kenneth Plowright
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	17 June 2013
Place	Adelaide

The decision under review is set aside and in substitution for that decision it is decided that:

(a)as Mr Plowright was not an Australian resident at the time he lodged his claim for disability support pension (DSP) on 7 September 2009, that claim was not valid and is taken not to have been made;

(b)Mr Plowright therefore had no entitlement to DSP on the basis of that claim; and

(c)the matter is remitted to the respondent for recalculation of the debt owed by Mr Plowright accordingly, and consideration of whether the recalculated debt should be waived or written off, in whole or in part.

....................[Sgd]…………………..
Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Portability – Former residence rules – Whether applicant formerly ceased to be an Australian resident - Whether he was an Australian resident when claim made - Applicant was not an Australian resident at the time of his claim and therefore had no entitlement to DSP - Applicant wrongly assessed as a former resident when he had not become a resident again - Decision under review set aside.

LEGISLATION

Social Security Act 1991 (Cth), ss 7(3), 1220

Social Security (Administration) Act 1999 (Cth), s 29

REASONS FOR DECISION

Deputy President K Bean

17 June 2013

INTRODUCTION

1. The applicant, Mr Plowright, was first granted disability support pension (DSP) in 1998, and has received DSP on an intermittent basis since then.  Since 2007, he has also spent lengthy periods of time in Thailand and this application concerns his continued eligibility to receive DSP during his periods of absence from Australia.

2. In particular, it concerns the correctness of a decision made by the Social Security Appeals Tribunal (SSAT) on 19 September 2011, affirming earlier decisions of Centrelink, to cancel Mr Plowright’s DSP from 4 October 2009 on the basis that he left Australia on that date, and that as he had not been residing in Australia for the previous two years, DSP was not payable to him while he was out of Australia.

3. It also concerns the correctness of the SSAT’s decision to raise and recover a debt of $29,192.40 arising from overpayment of DSP to Mr Plowright in the period from 4 October 2009 to 12 May 2011.

4. In December 2011, Mr Plowright applied for review of the SSAT’s decision by this Tribunal, giving rise to these proceedings.

   ISSUES

5. It follows that the issues before me potentially include the following:

   (a)whether Mr Plowright’s DSP was correctly cancelled from 4 October 2009;

   (b)whether the debt of $29,192.40 which has been raised against Mr Plowright has been correctly raised and calculated; and

   (c)if the debt of $29 192.40 has been correctly raised, whether there are any grounds upon which that debt should be waived or written off.

6. Insofar as they arise, I propose to address each of these issues in turn.

   WAS MR PLOWRIGHT’S DSP CORRECTLY CANCELLED?

7. Mr Plowright’s DSP was cancelled with effect from 4 October 2009 in reliance on s 1220 of the Social Security Act 1991 (the Act) which provides, and provided at the relevant time, as follows:

   No portability where claim based on short residence

   (1)If:

   (a)     a person is an Australian resident; and

   (b)   the person ceases to be an Australian resident; and

   (c)   the person again becomes an Australian resident; and

   (d)   within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

   (i)  an age pension; or

   (ii)  a disability support pension; or

   (iii)  a bereavement allowance; and

   (e)   after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and

   (f) financial assistance is not payable in respect of the person's absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953 ;

   a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.

   (2)If:

   (a)     a person resides in an area that is, at the time of residence, an external Territory; and

   (b)     the person has never before resided in Australia; and

   (c)   the person then arrives in Australia; and

   (d)      within the period of 2 years after the person arrives in Australia, the person is granted, or is transferred to:

   (i)  an age pension; or

   (ii)  a disability support pension; or

   (iii)  a bereavement allowance; and

   (e)   after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and

   (f) financial assistance is not payable in respect of the person's absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953 ;

   a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.

   (4)   For the purposes of the application of this section in relation to a particular social security payment, a person who has a qualifying residence exemption for that payment is taken:

   (a)     to be an Australian resident; or

   (b)     to reside in an area that is, at the time of residence, an external Territory;

   as the context requires.”

8. Earlier decision makers, including the SSAT, each concluded that Mr Plowright ceased to be an Australian resident on 3 December 2007.[1]  Therefore, although he returned to Australia on 28 August 2009, and was granted DSP from 31 August 2009, they also concluded that when he departed Australia for Thailand on 4 October 2009, Mr Plowright was a former resident who had not been residing in Australia for two years prior to his departure, and as such his DSP was not portable and was not payable to him whilst he was outside Australia.

   [1] T2/16.

9. Accordingly, in determining whether Mr Plowright’s DSP was correctly cancelled, I must consider whether he ceased to be an Australian resident and, if so, when. If he did cease to be an Australian resident, for the purpose of applying s 1220 I also need to determine whether he became an Australian resident again before departing Australia on 4 October 2009 and, if he did become a resident again, when this occurred and whether he departed Australia within two years of becoming a resident again.

10. In determining whether Mr Plowright was an Australian resident at the relevant times, I must have regard to s 7 of the Act, which most relevantly provides as follows:

    “…

    (3)In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

    (a)   the nature of the accommodation used by the person in Australia; and

    (b)   the nature and extent of the family relationships the person has in Australia; and

    (c)   the nature and extent of the person's employment, business or financial ties with Australia; and

    (d)   the nature and extent of the person's assets located in Australia; and

    (e)   the frequency and duration of the person's travel outside Australia; and

    (f)    any other matter relevant to determining whether the person intends to remain permanently in Australia.

    …”

11. Having regard to the terms of that provision, I will first address the questions of whether Mr Plowright ceased at any time to be an Australian resident and, if so, when he ceased to be an Australian resident. Having done so, to the extent the issue arises, I will then turn to the questions of whether he became an Australian resident again and, if he did, whether he departed Australia within the two year period provided for in s 1220.

    Did Mr Plowright cease to be an Australian resident and, if so, when?

12. There was no dispute between the parties that Mr Plowright left Australia on 3 December 2007.  He returned on 29 February 2008 and stayed in Australia for eight days, before returning to Thailand on 8 March 2008.  He then arrived in Australia again on 27 August 2008, and departed four days later on 31 August 2008.  He next arrived in Australia on 30 May 2009 and remained for approximately 14 days before departing again on 14 June 2009.  He next arrived in Australia on 28 August 2009, and remained in Australia until he again departed on 4 October 2009 as referred to above.[2]

    [2] T14/121-122.

13. Mr Plowright also did not dispute that before leaving Australia in December 2007, he had sold his property at Para Hills in Adelaide for an amount of $260,000.  Mr Plowright also told the SSAT that in the period between December 2007 and August 2009 when he was in Australia he stayed at his sister’s house without paying rent.  Mr Plowright also conceded in his evidence before me that he had made a choice to “go off” DSP in 2007 and to pursue a business in Thailand.  He said he wanted to make his own living and had purchased a lease on a guest house in Thailand.  He said that he stopped claiming DSP at this time as it was “the right thing to do”.  He said that during this period he retained some possessions in Australia, including a motor vehicle and some personal effects including a television and microwave, all of which were stored at his sister’s place.  However, he acknowledged that he had the lease on the guest house in Thailand for approximately two years and was supporting himself during that period.

14. In summary therefore, Mr Plowright left Australia for Thailand shortly after selling his house in Australia on 9 November 2007.  He left some personal possessions including a motor vehicle with his sister and proceeded to purchase a lease and establish a business in Thailand from which he derived an income for some period thereafter.  In the period between 3 December 2007 and 28 August 2009, Mr Plowright spent approximately 26 days in Australia, staying with his sister and paying no rent.

15. For completeness, in addition to other family members, Mr Plowright has two children in Australia and told the SSAT that he sees his two children when he is in Australia.[3] 

    [3] T2/15.

16. Notwithstanding that Mr Plowright clearly retained some significant ties in Australia after December 2007, in light of the facts referred to immediately above and having regard to the criteria outlined in s 7(3) of the Act, like the SSAT, I am also satisfied that Mr Plowright ceased to be an Australian resident on 3 December 2007.  In reaching that conclusion I have placed particular reliance on the amount of time he spent outside Australia between 3 December 2007 and 28 August 2009, as well as the fact that he sold his main asset in Australia before departing for Thailand, and proceeded to purchase a lease and establish a business in Thailand.  I have also had regard to the fact that between 3 December 2007 and 28 August 2009, Mr Plowright only returned to Australia for short periods, during which he stayed with his sister rent free.  In my view, the facts point to a conclusion that whilst he retained significant ties to Australia, Mr Plowright was not residing in Australia between 3 December 2007 and 28 August 2009.

    Did Mr Plowright become an Australian resident again between 28 August 2009 and 4 October 2009?

17. As I have indicated above, the next relevant question in terms of the application of s 1220 of the Act is whether Mr Plowright became an Australian resident again before he departed Australia on 4 October 2009. Having regard to the terms of s 1220, clearly if Mr Plowright did not become an Australian resident again, then s 1220 has no application to his circumstances.

18. On his 2009 DSP claim form, which he physically lodged on 7 September 2009, Mr Plowright gave an address in Australia.[4]  He also stated that he was living permanently in Australia.[5]  However he subsequently departed Australia approximately one month later, on 4 October 2009, and has only visited Australia for short periods, generally in the order of a week at a time or less, since then.  Further there is nothing in the material before me which would suggest that in the period between 28 August 2009 and 4 October 2009, Mr Plowright re-established his ties to Australia such that he became a resident again pursuant to s 7 of the Act.  For example there is nothing before me to suggest that he obtained a job in Australia, that he bought or rented property in Australia, that he moved significant assets to Australia or acquired assets here, or that there was any significant change to the nature of his family or other emotional ties to Australia.

    [4] T6/66.

    [5] T6/71.

19. In these circumstances, I have concluded that on the evidence before me, and contrary to the conclusions of each of the earlier decision makers, Mr Plowright did not become an Australian resident again between 28 August 2009 and 4 October 2009, or at any time thereafter. Therefore, on my analysis of the evidence, s 1220 has no application to Mr Plowright since at the time he left Australia on 4 October 2009, he was not an Australian resident and therefore did not fall within the terms of s 1220(1)(c).

    Was Mr Plowright eligible for DSP and, if so, during what period?

20. Clearly, in the above circumstances, s 1220 of the Act does not operate to disentitle Mr Plowright from receiving DSP once he left Australia. However given that he was not an Australian resident at the time he claimed DSP, a more fundamental issue arises.

21. Section 29 of the Social Security (Administration) Act 1999 provides, and provided at the relevant time, as follows:

    “(1)Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who: 

    (a) is an Australian resident; and

    (b) is in Australia.

    (2)Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

22. Accordingly, as Mr Plowright was not a resident when he lodged his claim, it follows that he was not eligible to receive DSP, either while he was in Australia or after he left for Thailand on 4 October 2009.  I have therefore reached the conclusion that Mr Plowright had no entitlement to DSP arising from his claim lodged on 7 September 2009, and his debt will need to be recalculated accordingly.  I expect that the debt which will now be raised against Mr Plowright will relate to the entire period for which he was paid DSP, that is from 31 August 2009 when he contacted Centrelink before making his claim, until 12 May 2011 when his DSP was cancelled.

23. However in these circumstances, I have no jurisdiction to deal with the issue of whether the debt resulting from Mr Plowright’s failure to make a valid claim should be waived or written off, as the power to deal with those issues only arises in the context of a specific debt which has been correctly raised.  For that reason, I will not proceed to address that issue, but rather propose to remit the matter to the respondent for recalculation of the debt which arises from my conclusion that Mr Plowright had no entitlement to DSP arising from his claim lodged on 7 September 2009.  Once a new debt has been raised, it will of course be incumbent on the relevant decision maker to also consider whether that debt should be waived or written off, in whole or in part.

    Conclusion

24. In summary, I have decided that the basis upon which Mr Plowright’s DSP was cancelled was incorrect as s 1220 of the Act was not in fact applicable to him. However I have also concluded that as he was not an Australian resident at the time he lodged his claim for DSP on 7 September 2009, he had no entitlement to DSP on the basis of that claim and his debt will need to be recalculated accordingly. I have also decided to remit the matter to the respondent for recalculation of Mr Plowright’s debt, and consideration of whether that debt should be waived or written off, in whole or in part.

    CIRCUMSTANCES WHICH MAY WARRANT FURTHER CONSIDERATION BY THE RESPONDENT

25. Before parting with this matter however, I should make mention of some unusual circumstances surrounding the matter which may warrant consideration in the context of considering whether Mr Plowright’s recalculated debt should be waived or written off, or whether there are grounds for compensation to be paid to Mr Plowright under The Scheme for Compensation for Detriment caused by Defective Administration, or on some other basis.

26. Notwithstanding my conclusion above that Mr Plowright had not regained his residency status by the time he again left Australia on 4 October 2009, and the conclusions of the Authorised Review Officer (ARO) and the SSAT that even if he had become a resident again his DSP was not portable, it appears to be clear on the evidence before me that Mr Plowright was repeatedly advised that his DSP was portable and, so long as he returned to Australia every 13 weeks, he would remain eligible for DSP.

27. Mr Plowright claimed before me that he contacted Centrelink each time he travelled and did not travel until permission for this was granted and he was advised of the date by which he must return to Australia.[6]  He said he was assured on numerous occasions that he was doing the right thing and remained eligible for DSP.  He also contended that he had spent approximately $10,000 on air fares returning to Australia every 13 weeks in order to comply with what he understood to be the portability requirements.  He said the return air fare was approximately $1,200 every 13 weeks, amounting to over $10,000 over two years.[7]

    [6] Exhibit 3.

    [7] Exhibit 5.

28. Further Mr Plowright’s evidence in this regard was consistent not only with the records recording his arrivals in and departures from Australia, but also with the contemporaneous records of his contacts with Centrelink.  For example, a record generated on 21 December 2009 recorded a telephone call from Mr Plowright in the course of which he advised that he intended to leave Australia on 21 December 2009 and return on 12 March 2010.  The record also states “DSP is portable until at least 12 March 2010”.[8]  The record also recorded the following factors affecting the portability decision:

    “DSP (or payments) started 31 AUG 2009 – less than 2 years ago.

    A/n was legally resident in Australia for all of the last 2 years.

    A/n was residing in Australia for all of the last 2 years.

    Customer’s DSP payments are not affected by former residence rules.

    Short interview selected - a/n receives DSP.

    No known future event prevents portability of DSP as detailed above.

    No know future event prevents portability of PCC as detailed above.

    Short interview selected – a/n likely to return before 22 MAR 2010.”[9]

    [8]  Exhibit 2, p 6.

    [9]  Exhibit 2, p 6.

29. A further record was generated on 10 March 2010 recording a further telephone call from Mr Plowright regarding portability.  This record included the following statements:

    “A/n plans to return to Australia in 10 MAR 2010.

    A/n has no definite plans to depart Australia again.”[10]

    A similar record was generated on 6 October 2010 recording that Mr Plowright would return to Australia on 6 October 2010 and that he had no plans to depart Australia again.  The record also recorded that he could continue to be paid DSP whilst in Australia.[11]  A separate record for the same date recorded that Mr Plowright was intending to go overseas to Thailand on 13 October 2010 and return to Australia on 12 November 2010.  The record states “DSP is portable until at least 12 NOV 2010” and the factors recorded as affecting the portability decision included:

    “A/n was legally resident in Australia for all of the last 2 years.

    A/n was residing in Australia for all of the last 2 years.

    Customer’s DSP payments are not affected by former residence rules.”[12]

    [10] Exhibit 2, p 8.

    [11] Exhibit 2, p 10.

    [12] Exhibit 2, p 11.

1. A further similar record was generated on 10 February 2011, again relating to a portability enquiry, portability interview and portability decision.[13]  This record stated that Mr Plowright was travelling to Thailand from Australia on 11 February 2011 and that he planned to return before 13 May 2011.  The record stated as follows “disability support pension is portable until at least 13 MAY 2011”.  Factors affecting the portability decision were relevantly identical to those recorded in previous decisions.[14]

   [13] Exhibit 2, p 14.

   [14] Exhibit 2, p 14.

2. A further almost identical record was generated on 12 May 2011, recording that Mr Plowright intended to travel to Thailand from Australia on 19 May 2011 and would return before 18 August 2011.  Again the record stated that his pension would be portable until at least 18 August 2011, the factors affecting the portability decision being identical with those recorded in the context of previous decisions.[15]

   [15] Exhibit 2, p 16.

3. On the evidence before me, it therefore appears that Mr Plowright was led to believe by the Centrelink staff he spoke to that providing he returned to Australia every 13 weeks, he would remain eligible for DSP.  Further, insofar as each of the relevant documents created by Centrelink recorded that Mr Plowright had been legally resident in Australia for the past two years and that his DSP payments were “not affected by former residence rules”, the records were all incorrect, or at least inaccurate. For the reasons set out above, Mr Plowright was not an Australian resident at the time he lodged his claim for DSP in September 2009. Further, even if he had been a resident at that time, his DSP would not have been portable because of the effect of s 1220 of the Act and the fact that he had not been a resident between 3 December 2007 and 28 August 2009.

4. Clearly this is an unusual set of circumstances.  In particular, it is unusual for a welfare recipient to apparently be induced by incorrect advice from Centrelink to spend significant amounts of money in an attempt to retain eligibility for a benefit which, it subsequently transpires, they are not entitled to receive in any event.  In other words, not only was Mr Plowright not advised that he needed to return to Australia and remain in Australia in order to gain and retain eligibility for DSP, he was apparently advised that he could remain in Thailand but needed to return to Australia every 13 weeks in order to retain eligibility.  He appears to have acted on that advice and apparently incurred very significant expenses in what ultimately turned out to be a futile endeavour to remain eligible for DSP. 

5. In the context of a Telephone Directions Hearing convened after the hearing, Mr Plowright advised the Tribunal that he has now exhausted all of his available funds and has no means of returning to Australia, or of supporting himself if he was able to return.  In other words he claims that, partly as a result of the events outlined above, and the subsequent unexpected cancellation of his DSP, he is now ‘stranded’ in Thailand.

6. Having regard to the limitations on its jurisdiction, clearly the Tribunal is not in a position to assess or adjudicate on this aspect of the matter.  However it may be appropriate for the respondent to give further consideration to Mr Plowright’s situation and the reasons for it, with a view to determining whether he is entitled to any form of compensation, and/or whether the debt raised as a result of my conclusions should be waived or written off.

   ADDITIONAL ISSUE RAISED BY MR PLOWRIGHT

7. In written statements provided to the Tribunal on 5 and 19 May 2013, Mr Plowright also raised an argument that when he returned to Australia in August 2009, he should simply have been placed back onto DSP, rather than being required to lodge a fresh claim.  He further contended that if that had occurred, his DSP would have been portable indefinitely and he would not have had the problems which have now transpired.

8. In my view, these issues also fall outside the scope of the matter before the Tribunal, which concerns the correctness of decisions made on the claim lodged by Mr Plowright in September 2009.  From the limited information before me, it appears that when he returned from Thailand to Australia in August 2009, Mr Plowright elected to lodge a new claim for DSP rather than rely on any previous claim.  It also appears that prior to this his previous entitlement to DSP had been cancelled from 25 May 2007 as the portability period had elapsed.[16]  In these circumstances, it is difficult to see on what basis his previous entitlement to DSP could have been ‘resuscitated’ by Mr Plowright in August 2009.  However, in any event, this is something Mr Plowright will need to pursue directly with the respondent as it falls outside the jurisdiction of the Tribunal in the context of the current application.  It may also be an issue which should be considered further by the respondent in determining whether any part of Mr Plowright’s recalculated debt should be waived.

   [16] T4/38.

   CONCLUSION

9. For the reasons set out above, I have concluded that DSP was not payable to Mr Plowright on the basis of his claim lodged on 7 September 2009, as he was not an Australian resident at the time he lodged that claim and therefore the claim was not valid and is taken not to have been made.  I have accordingly decided to set aside the decision under review and remit the matter to the respondent for recalculation of Mr Plowright’s debt on the basis that he had no entitlement to DSP arising from his claim lodged on 7 September 2009.  Of course once Mr Plowright’s debt has been recalculated, it will also be incumbent on the respondent to consider whether the recalculated debt should be waived or written off, in whole or in part.

   DECISION

10. The decision under review is set aside and in substitution for that decision it is decided that:

    (a)as Mr Plowright was not an Australian resident at the time he lodged his claim for DSP on 7 September 2009, that claim was not valid and is taken not to have been made;

    (b)Mr Plowright therefore had no entitlement to DSP on the basis of that claim; and

    (c)the matter is remitted to the respondent for recalculation of the debt owed by Mr Plowright accordingly, and consideration of whether the recalculated debt should be waived or written off, in whole or in part.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of

.....................[Sgd].....................

Administrative Assistant

Dated  17 June 2013

Date(s) of hearing	25 September 2012
Date final submissions received	20 May 2013
Applicant	In person
Advocate for the Respondent	Mr A Parker
Solicitors for the Respondent	Department of Human Services