Kitson and Secretary, Department of Family and Community Services

[2005] AATA 1321

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1321

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/372

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER KITSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal Senior Member B J McCabe

Date8 December 2005

PlaceCairns

Decision The decision under review is affirmed.

[Sgd]
  B J McCABE
  SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension – applicant is severely disabled – portability provisions – meaning of Australian resident – applicant became an Australian resident on return from overseas – applicant is unable to fall within transition provisions

Social Security Act 1991

Hafza v Director-General of Social Security (1985) 6 FCR 444

Taslim v Secretary, Department of Family and Community Services (2004) 83 ALD 398

WRITTEN REASONS FOR ORAL DECISION

25 May 2006 Senior Member B J McCabe

1.      Mr Peter Kitson has sought review of a decision to limit the payment of disability support pension while he is overseas to a maximum of 13 weeks. The hearing was held on 8 December 2005 where the Tribunal affirmed the decision under review and gave oral reasons for its decision. The applicant subsequently requested written reasons on 24 April 2006. These are the written reasons for the Tribunal’s decision.

2.      Mr Kitson suffers from a number of health problems, including asthma, high blood pressure and gout. He says he is unable to obtain proper relief for those conditions in Australia. He prefers to spend time in Thailand. He has travelled there on a number of occasions for extended periods. Mr Kitson says the climate and the pace of life are more conducive to good health. He says, for example, that while he is in Thailand he is able to dispense with his asthma medication and much of his blood pressure medication.

3.      The Secretary decided on 28 February 2002 that he was not severely disabled within the meaning of the Social Security Act 1991 (the Act) as he was working for more than 8 hours a week while driving a taxi. Mr Kitson says he drove the taxi in considerable pain in order to save up for the cost of the airfare to Thailand. He says he did so against his doctor’s orders.

4.      Mr Kitson went overseas in November 2003. He was told before his departure that he was not regarded as being severely disabled although he understood that decision would be reviewed. He was told he was eligible to stay away for a maximum of 52 weeks, which was the maximum period allowable under the legislation at the time. After review, the applicant was told his pension would be cut off after the 52 week period elapsed because he was not considered to be severely disabled. He was also told that after his return, he would only be allowed to stay away for 13 weeks at a time as a result of amendments to the Act.

5.      Amendments to the Act meant that persons who were severely disabled would also be subject to a 13 week limit on future stays away unless he or she could take advantage of an exemption in clause 135 to Schedule 1A of the amending legislation or the Secretary exercised his discretion to extend portability pursuant to s 1218AA. I should say at this point that the secretary could not exercise the discretion in s 1218AA because it only applied where the severely disabled person was suffering from a terminal illness and needed to be with relatives or to return to their country of origin. In this case, the medical evidence confirms the applicant does not suffer from a terminal illness, and is not departing Australia to be with relatives.

6.      It follows I am only required to consider whether the applicant became an Australian resident upon his return to Australia in November 2004 if he was severely disabled. I will deal with the question of severe disability first.

7.      Dr Vargo provided several medical reports on behalf of the applicant. He has been the applicant’s treating doctor for a lengthy period. Dr Vargo clearly says the applicant cannot work as a result of a number of conditions and considers the applicant to be severely disabled. It appears Dr Vargo was particularly concerned about the impact of the alcohol condition. A number of other doctors, in particular Dr Seeto, say the applicant’s conditions (for example the asthma condition) are not serious enough to leave him severely disabled. They say that those conditions should respond to treatment.

8.      I have some reservations about the applicant’s claim as to severe disability. The specialists think his conditions are treatable. But given the clear evidence of Dr Vago who is familiar with the applicant’s general condition, I am satisfied he is and was severely disabled.

9.      He did return to Australia – albeit because he was told his disability support pension would be cut off. Clause 135(1)(c) of the Schedule to the amending legislation says that return can be ignored. In other words, he will be permitted to remain overseas indefinitely under the old regime if he did not become an Australian resident again when he returned. The expression Australian resident is defined in s 7(2) of the Act. Section 7(3) lists a number of factors that must be taken into account when making a decision as to whether or not a person is, in fact, an Australian resident.

10.     Those matters include:

·     The nature of the accommodation used by the person in Australia;

·     The nature and extent of the family relationships the person has in Australia;

·     The nature of the person’s employment, business or financial ties with Australia;

·     The person’s assets located in Australia;

·     The frequency and duration of the person’s travel outside Australia; and

·     Any other matter that might be relevant to determining whether the person intends to remain permanently in Australia.

11.     This case is a difficult one. The applicant is effectively a transient in Australia and Thailand. I note the comments of Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444 and Beaumont J in Taslim v Secretary, Department of Family and Community Services (2004) 83 ALD 398 who try to make sense of the requirement. On balance, I am satisfied the applicant has become an Australian resident upon his return; albeit that he has made it clear he is not here by choice. He has made it clear he is staying for as long as he must in order to fight this case.

12.     The applicant does have family here; he has none in Thailand. He has property here; he has none in Thailand. His accommodation in both places is comparable; he doesn’t work in either country. His travel record indicates he spends the majority of his time in Thailand and has done so over the past few years, but he comes back to Australia – especially to visit his sickly mother. He clearly wants to go back to Thailand and perhaps to spend the bulk of his time, but he has not indicated he intends to sever his relationship with Australia permanently.

13.     In those circumstances, the applicant is unable to take advantage of the transition provisions. He is therefore caught by the new limits in the legislation that say he loses his entitlement to disability support pension overseas after 13 weeks.

14.     The decision under review is therefore affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         .....................................................................................
  Associate      Adam Ryan

Date/s of Hearing  8 December 2005
Date of Decision  8 December 2005
Date of Written Reasons          25 May 2006
The applicant appeared in person.
The respondent was represented by Ms Oliver, a departmental advocate.