KITSON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 272

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 272

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5757

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PETER KITSON

Applicant

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

Respondent

DECISION

Tribunal Mr P Wulf, Member

Date19 April 2010

PlaceBrisbane

Decision The application is dismissed. 

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

Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Claim for disability support pension – Applicant is severely disabled – Portability provisions – Meaning of Australian resident – Relitigation of same facts

Social Security Act 1991 (Cth) s 1217

Comcare Australia v Grimesand Another (1994) 33 ALD 548; 121 ALR 485

Kitson and Secretary, Department of Family and Community Services [2005] 90 ALD 719

Re Cooper and the Repatriation Commission (1995)38 ALD 164

REASONS FOR DECISION

19 April 2010 Mr P Wulf, Member

1.      Mr Peter Kitson has sought review of a decision of an Authorised Review Officer dated 7 August 2009 to limit the payment of disability support pension (DSP) while he is overseas to a maximum of 13 weeks.  The matter was heard on the papers (written submissions).

2.      There is some history with respect to Mr Kitson appearing before both the Social Security Appeals Tribunal and this Tribunal on a similar matter (Kitson and Secretary, Department of Family and Community Services [2005] 90 ALD 719). Therefore it is not necessary to repeat the matters with respect to Mr Kitson’s disabilities particularly in that the respondent does not dispute Mr Kitson’s severe disability. Suffice to say, from Mr Kitson’s submissions and the contents of the previous matter, it is acknowledged that Mr Kitson finds the Australian climate not conducive to his health and therefore spends a substantial amount of his time overseas in what he considers a more appropriate climate.

3.      On 9 November 2003, Mr Kitson went overseas.  In the decision of Kitson and Secretary, Department of Family and Community Services [2005] 90 ALD 719, the Tribunal provides a history of the legislative amendments made to the Act on 1 July 2004 and these do not need to be repeated here. The important matters are however that on 1 July 2004, the Act was amended to reduce the eligibility period to receive DSP from 52 weeks to 13 weeks when the recipient is overseas (s 1217).

4.      The Applicant returned to Australia on 8 November 2004 and immediately became an Australian resident again.  Subsequent to that time, Mr Kitson has again travelled overseas and therefore pursuant to s 1217 of the Social Securities Act 1991 (Cth) (the Act) is only eligible for 13 weeks DSP while away from Australia.

5.      It would appear to the Tribunal, that the matters which Mr Kitson appeals about were addressed in the 2005 decision of this Tribunal.  Further, in 2007, the Federal Magistrates Court refused Mr Kitson an extension of time as they considered the appeal to be without merit.

6.      The respondent submitted that this application is merely an attempt by Mr Kitson to have the matter re-litigated.  Courts and Tribunals have long taken the view that it is important that there be an end to litigation and this Tribunal concurs with that view.

7.      In Re Cooper and the Repatriation Commission (1995) 38 ALD 164, the Tribunal following the decision of Wilcox J in Comcare Australia v Grimes and Another (1994) 33 ALD 548 at 555 dismissed the application stating that “the tribunal, as master of its procedures, would not allow a finally determined matter to be relitigated”.

8.      While the Tribunal and the respondent acknowledge Mr Kitson’s circumstances, s 1217 of the Act stipulates that there is only 13 weeks DSP payable to Australians when living overseas.  The decisions of the Tribunal and Federal Magistrates Court of 2005 and 2007 respectively still stand and there has been no amendment to the legislation that would change Mr Kitson’s circumstances.  He has not had an increase in his disability and no special circumstances exist to allow for any of the exemptions in Schedule 1 to apply. 

9.For the reasons I have stated, the application for review is dismissed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.

Signed: ........................[Sgd].....................................................
              Kate Slack, Research Associate

Hearing on the papers
Date of Decision  19 April 2010