KGLC; Secretary, Department of Social Services and (Social services second review)

The Administrative Appeals Tribunal (AAT) reviewed a decision concerning KGLC's eligibility for a Disability Support Pension (DSP). The Secretary of the Department of Social Services sought review of an earlier AAT decision which had found KGLC eligible for the DSP and remitted the matter for assessment. The central dispute revolved around whether KGLC, an Australian citizen by descent and a dual citizen of Australia and the United States, could utilise the provisions of the Australia-United States Social Security Agreement to satisfy the qualifying Australian residency requirements for the DSP. KGLC had been diagnosed with a disability in 2006, but did not relocate to Australia until 2014, meaning he did not meet the standard 10-year Australian residency requirement at the time of his claim.

The primary legal issue before the Tribunal was to determine if KGLC could aggregate periods of "United States period of coverage" with his Australian residency to meet the DSP's qualifying residence criteria, as permitted by Article 9 of the Australia-United States Social Security Agreement. This required an interpretation of "United States period of coverage" as defined in the Agreement, and whether KGLC's father, a US citizen and veteran, possessed such periods of coverage that could be attributed to KGLC, or if KGLC himself had any such periods. The Tribunal also had to consider the scope of the applicable US laws under the Agreement, specifically whether benefits derived from a parent's eligibility or non-contributory schemes like Supplemental Security Income (SSI) could be considered.

The Tribunal found that KGLC's father, ELV, a US citizen and veteran, had accrued significant "quarters of coverage" under the US Social Security Act during his military service, making him eligible for US Social Security benefits, even though he elected to receive higher Department of Veterans Affairs benefits. The Tribunal determined that under the Agreement, specifically Article 3 and the interpretation of "United States period of coverage" in Article 1(1)(e), a child could derive entitlement to benefits based on a parent's eligibility. Relying on the principles of treaty interpretation and the specific wording of the Agreement, the Tribunal concluded that KGLC could indeed rely on his father's accrued periods of coverage to satisfy the residency requirements for the DSP.

Consequently, the Tribunal affirmed the earlier AAT decision, finding that KGLC met the residency requirements for the DSP by virtue of the totalisation provisions of the Australia-United States Social Security Agreement. The matter was to be remitted to the Secretary for a full assessment of KGLC's DSP entitlement from the date of his claim.