Kriticos and Secretary, Department of Family and Community Services
[2005] AATA 722
•29 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 722
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/5
GENERAL ADMINISTRATIVE DIVISION ) Re TOULA KRITICOS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member) Date29 July 2005
PlaceHobart
Decision The decision under review is affirmed.
..............................................
Part-Time Member
CATCHWORDS
Social Security – disability support pension – maximum portability period – no international agreement between Australia and Greece – amending legislation – issue of accrued right - decision under review affirmed
Social Security Act 1991 ss 1213, 1217, 1218C, 1218AA
Acts Interpretation Act 1901 s8
REASONS FOR DECISION
29 July 2005 Ms A F Cunningham (Part-time Member)
1. The applicant has sought the review of a decision made by a Centrelink officer on 17 August 2004 which determined that the applicant’s disability support pension ceased to be payable from 3 November 2004, being 13 weeks from the date that she departed Australia. The decision was affirmed by the Social Security Appeals Tribunal on 7 December 2004.
2. As the applicant resides in Greece, both parties to the appeal agreed that the hearing be conducted by way of telephone link to the applicant’s place of residence. The applicant appeared in person. The respondent was represented by Ms Baulch.
3. The T documents were tendered pursuant to the provisions of section 37 of the Administrative Appeals Tribunal Act 1975. Included in the T documents was the applicant’s application for review received by the Tribunal on 18 January 2005.
4. In her letter to the Tribunal the applicant stated inter alia that:
“the problem began, when my children, invited me and my parents to attend the baptising of my grandson with all the expenses paid from them, on June 19th June 2004.
When I arrived in Australia, I went to Adelaide Centrelink and I reported the reasons for being there, how long I would stay, and a photocopy of my passport.
Coming back to Greece on August 5th 2004, to live permanently again, as I do the last 6 years with my parents at Aeraki Lakouias, I received a letter from Hobart, instead of my pension letter. With that, they informed me that my pension would continue for 13 weeks and then it would be cut off, although I did everything I had to when I went to Australia, and there, they told me that I wouldn’t have any problems with my pension just because I came for a family matter and not for a long time.
So, when I called Hobart, they said they will re-evaluate my case and indeed, after 9 weeks I got a new letter, in which they said that my pension will continue normally.
I was fine, until I received another letter, which said that finally my pension will cut off and nothing else, like the first one”.
5. The applicant informed the Tribunal that she agreed with the statement of facts as set out in the Secretary’s Statement of Facts and Contentions lodged with the Tribunal on 20 May 2004 which are as follows:
1. The applicant, then known as Mrs Toula Christopoulos, was granted Disability Support Pension from 15 May 98;
2. On 25 August 98 the Respondent determined that the Applicant was severely disabled for the purposes of payment of her Disability Support Pension whilst overseas (T3, p11);
3. On 28 August 98 the Respondent determined that the Applicant’s Disability Support Pension could be paid for an indefinite period whilst she was overseas (T4, p12);
4. On 28 August 98 the Applicant was sent two letters about the payment of her Disability Support Pension whilst overseas (T5 & T6, pp 13-17);
5. On 29 August 98 the Applicant departed Australia for Greece (T16, p43);
6. On 24 July 02 the Applicant advised the Respondent that she was now known as Toula Kriticos (T6(a), p 17(a);
7. On 5 April 04 the Applicant was sent a letter advising her that the Social Security legislation regarding payments whilst overseas would change from 1 July 04 and that she should not travel without seeking advice from Centrelink first (T8,p22);
8. On 6 June 04 the Applicant returned to Australia (T16,p43);
9. On 4 August 04 the applicant left Australia (T16,p43);
10. On 17 August 04 the Applicant was advised that her Disability Support Pension would cease from 3 November 04 (T9,p27);
11. On 19 August 04 the Applicant was sent a letter to advise that her Disability Support Pension would cease to be paid to her after 3 November 04 (T10 pp 28-29);
12. On 1 September 04 the Applicant requested that the decision to no longer pay her Disability Support Pension from 3 November 04 be reviewed (T11,p30);
13, On 6 September 04 the original decision maker reviewed and affirmed the decision to cease paying the Applicant’s Disability Support Pension from 3 November 04 (T11,p32 & T12, pp34-35);
14. On 6 September 04 the decision was sent to an Authorised Review Officer for further consideration (T11,p33);
15. On 9 September 04 the Authorised Review Officer affirmed the decision to cease paying the Applicant’s Disability Support Pension from 3 November 04 (T14,p37 &T15,pp 45-48);
16. On 29 September 04 the Applicant requested that the decision by reviewed by the Social Security Appeals Tribunal (T17,p44 & T18,pp 45-48);
17. On 3 November 04 the Applicant was sent a letter advising her that her Disability Support Pension would stop as she was still overseas;
18. On 7 December 04 the Social Security Appeals Tribunal affirmed the decision to cease paying the Applicant Disability support Pension from 3 November 04 (T2, pp 3-10)l;
19. On 18 January 05 the Applicant applied to the Administrative Appeals Tribunal for a review of the decision to cease paying her Disability Support Pension from 3 November 04 (T1,p1); and
20. On 19 January 05 the Applicant was sent a letter to advise that her Disability Support Pension was cancelled.
6. The issue for determination by the Tribunal is for what length of time disability support pension is payable to the applicant following her departure from Australia.
7. The applicant’s pension is payable in accordance with the provisions of the Social Security Act 1991 (The Act) as there is no Social Security agreement between Greece and Australia. The relevant provisions concerning portability of pensions are to be found in sections 1213 to 1220 of the Act. The Tribunals determination is one of statutory construction of the relevant provisions of the Act. The Act was amended by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003. The effect of this legislation was to remove the entitlement of severely disabled persons to receive payment of disability support pension whilst abroad for an unlimited period, substituting in lieu thereof, a period of 13 weeks, unless they are terminally ill. The applicant’s disability support pension was granted on the grounds of depression/anxiety, thoracic kyphosis and peptic ulcer disease. There was no evidence before the Tribunal nor did the applicant contend that she was terminally ill.
8. Section 1217 of the Act provides that a person in receipt of disability support pension’s maximum portability period is 13 weeks, unless section 1218AA of the Act applies (if the person is terminally ill).
1217.(1) The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:
(a) the payment (as specified in column 2 of the table); and
(b) the class of persons to which the person belongs (as specified in column 3 of the table).
Meaning of allowable absence
1217.(2) The person’s absence is an allowable absence in relation to the payment at a particular time if, at that time:
(a) it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and
(b) except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B of Division 2 of Part 4.2 applies, the absence does not exceed the period specified in column 5 of that item.
Meaning of portability period if unlimited maximum portability period
1217.(3) If the person’s maximum portability period for the payment is an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.
Meaning of portability period if maximum portability period limited
1217.(4) If the person’s maximum portability period for the payment is a period of weeks, the person’s portability period for the payment, in relation to the period of absence, is the period:
(a) beginning at the commencement of the period of absence; and
(b) ending at the earlier of the following times:
(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;
(ii) the end of the period of weeks the person’s maximum portability period for the payment.
Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.
___________________________________________________________________
Portability of social security payments
___________________________________________________________________
Column 1 Column 2 Column 3 Column 4 Column 5
Item Payment Person Absence Maximum
portability
period
___________________________________________________________________
...
3 Disability support All persons Any absence 13 weeks (but
pension see also section
1218AA)
9. Section 1218C of the Act provides that a persons portability period may be extended where the person is unable to return to Australia because of a specified event which arises in their portability period. There was no evidence before the Tribunal that this section is relevant to the applicant’s circumstances.
10. At the time the applicant was granted disability support pension, the maximum portability period was unlimited in the case of a severely disability person. The amending Act repealed the previous portability periods for disability support pension and replaced them with a 13 week portability period in detailed in Section 1217 above. Section 2 of the Amending Act provides that the commencement date for the provisions was 1 July 2004. It was submitted on behalf of the respondent that the amended portability provisions apply to the applicant’s circumstances as her period of absence from Australia commenced after 1 July 2004. Further it was contended that the applicant’s circumstances do not qualify her for exemption under the savings provision as contained in Section 135 of the Act. This section requires that the person be absent from Australia at the commencement of the clause (that is at 1 July 2004) and further that after 1 July 2004 the person enters Australia but does not become and Australian resident again.
11. The evidence was the applicant was present in Australia on 1 July 2004 having arrived on 6 June 2004 and departing Australia on 4 August 2004. The applicant conceded that prior to her departure from Greece she received a letter from the respondent dated 5 April 2004 which was in the following terms:
“Social security and family assistance legislation will change from 1 July 2004. The length of time that most Australian payments, including disability support pensions, can be paid whilst overseas will be shortened to 13 weeks. If you are already outside Australia on 1 July 2004 the new rules will not apply to you until you return to Australia. However, there are exceptions to this, including if you go to a country to which Australia has an international social security agreement.
A further change to the legislation from 1 July 2004 provides that your payment may be suspended or cancelled while overseas if you do not notify Centrelink of your overseas absence.
If you are thinking about travelling on or after 1 July 2004 you must call Centrelink International Services to find out how these changes will affect your payment.
This letter is for information only”.
12. It was the applicant’s evidence that she had not contacted Centrelink International Services prior to her departure from Greece. Her first contact with Centrelink was following her arrival in Australia.
13. The question remains as to whether the applicant had accrued rights to the payment of her disability support pension despite the introduction of the amending legislation with effect from 1 July 2004.
14. It was conceded by the respondent that when the applicant first departed Australia on 29 August 1998 she was advised that her disability support pension could be paid for an indefinite period whilst she was overseas. It was submitted however that there are no accrued rights to an indefinitely portable disability support pension in the applicant’s case as the Amending Act is clear in its intention to limit the portability of disability support pensions.
15. With respect to accrued rights, Section 8 of the Acts Interpretations Act 1901 provides:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid”
16. It was submitted that Section 8 has no application in the current case as the Amending Act has expressed a contrary intention.
17. The Explanatory Memorandum for the Amending Act states:
“This Bill reduces the allowable period of temporary overseas absence for portable social security payments from 26 weeks to 13 weeks. The new portability period will also apply to disability support pension although there will be capacity tio grant an unlimited portability period to a severely disabled disability support pensioner in defined circumstances”.
18. It was submitted on behalf of the respondent that the above provision clearly provides that the only exceptions to the introduced restricted portability period would be circumstances covered by the new Section 1218AA or the savings provision in Schedule 6, Clause 19 of the Amending Act as set out above (Section 135).
19. Clause 20 (1) of Schedule 6 of the Amending Legislation provides “the amendments of the Social Security Act 1991 made by this Schedule apply in relation to absences from Australia that start on or after the commencement of this Schedule”.
20. It would thus appear that the only circumstances in which an applicant may be entitled to an unlimited portability period would be those now specified by legislation, namely when the applicant is terminally ill or alternatively meets the savings provision as specified in Section 135.
21. The Administrative Appeals Tribunal considered the issue as to whether the applicant had an accrued right to a disability support pension at the time of the introduction of the Amending Legislation in its decision Makris and Secretary, Department of Family and Community Services 2005 AATA 375. In accordance with existing case law, the Tribunal determined that no accrued right existed until a decision had been made pursuant to the applicant’s request. The Tribunal found that the applicant in that case had no accrued right to the payment of a disability support pension at the time of the decision under review in that there had been no determination or decision with respect to the applicant’s entitlement. Similarly in the current case the applicant’s entitlement is to be governed in accordance with the law existing at the time of the decision. There had been no previous determination as to the applicant’s entitlements such as to justify a conclusion that the applicant had an accrued right with respect to her disability support pension.
22. The Tribunal is generally to apply the law as at the date of the decision (re Costello and Secretary, Department of Transport 1979 2 ALD). At the relevant date namely 1 July 2004, the applicant was present in Australia, albeit for a temporary visit. As at that date she was subject to the amending legislation which provided that once a person departed Australia, their entitlement to a disability support pension was limited to a period of 13 weeks (Section 1217 of the Act).
23. It is indeed most unfortunate that the applicant’s return visit to Australia for the purpose of attending her grandchild’s christening coincided with the commencement date of the amending legislation. Had the applicant chosen to visit on a date either prior to or subsequent to 1 July 2004, her pension entitlement would not have been affected. The applicant acknowledged that she received prior notice of the proposed legislative changes and failed to contact Centrelink as suggested in the letter. The applicant contended that she did not appreciate and fully understand the ramifications of the advice. Whilst the letter of explanation could have provided more detail, the Tribunal does not accept that the onus rests with the respondent to provide comprehensive legal advice to a pension recipient regarding the ramifications of amending legislation.
24. Accordingly the Tribunal finds that the applicant’s pension entitlement was subject to the provisions of the amending legislation. As the applicant was present in Australia at the relevant time she was subject to the provisions of Section 1217 of the Act which provide that the maximum portability period for payment of her disability support pension is limited to 13 weeks. The Tribunal finds that the decision of Centrelink to cease payment of the applicant’s disability support pension from 3 November 2004 was made pursuant to the legislation prevailing at the relevant time.
25. The Tribunal accordingly affirms the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed : R Hunt (Administrative Assistant)
Date/s of Hearing 21 June 2005
Date of Decision 29 July 2005
Counsel for the Applicant Applicant on her own behalf
Counsel for the Respondent Ms M Baulch, Centrelink Legal Services
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